Trial de novo summary judgment motion appealed

AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 2016 NY Slip Op 00916 (2d Dept. 2016)

The reason I appealed

“Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judgment, was sufficient to establish, prima facie, that its denial of claim forms were timely mailed in accordance with the plaintiff’s standard and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169; cf. Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051). In opposition, the defendant failed to raise a triable issue of fact as to the timeliness of the denial of claim.”

Triable issue of fact – medical necessity

The medical necessity issue (first tine the Appellate Division, Second Department actually dealt with a Pan Chiro issue)

“Furthermore, with respect to the medical necessity of the services provided by the defendant, the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary (see Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 47 Misc 3d 145[A], 2015 NY Slip Op 50698[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51713[U] [App Term, 2d Dept, 11th & 13th Jud Dists]).

However, in opposition to the motion, the defendants submitted affidavits and various medical records relating to Coyotl’s treatment which were sufficient to raise a triable issue of fact as to the necessity of that treatment (see Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Lenox Hill Radiology & Mia, P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55 [App Term, 2d Dept]).

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, as further proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”

Partial summary judgment

“[f]urther proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.”

I do not think I should have had costs awarded against me.  I accomplished what needed to get done.

 

 

Make a promise in your papers and fail to keep it? Summary judgment lost

Bay LS Med. Supplies, Inc. v Allstate Ins. Co., 2015 NY Slip Op 51625(U)(App. Term 2d Dept. 2015)

“In support of its cross motion, defendant submitted an affidavit by its special investigator which set forth defendant’s standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Although the affiant stated that, annexed as an exhibit, was a copy of the certified mail, return receipt card bearing the claim number in question, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question, the documents attached to defendant’s motion pertained to a different assignor. As a result, defendant failed to establish that it had properly mailed its denial of claim form to plaintiff”

Non-Receipt and medical necessity

Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 2015 NY Slip Op 50565(U)

(1) “We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims”

(2) “The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure”

It is always interesting watching the “mailing v. non-receipt” battles.

 

Mailing again

Healthy Way Acupuncture, P.C. v One Beacon Ins. Co., 2015 NY Slip Op 50537(U)(App. Term 1st Dept. 2015)

This time, the Court does not focus so much on the jural relationship between the parties, but the court is focusing on when the person commenced employment with the entity at issue.

“The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group (“Tower”), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant’s personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254 [2011]), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant”

First class mail is sufficient even when certified mailing is returned

MML Med. Care, P.C. v Praetorian Ins. Co., 2014 NY Slip Op 51792(U)(App. Term 2d Dept. 2014)

“While the Civil Court held that the tracking numbers associated with the copies of the letters which had been sent by certified mail, return receipt requested, reflected that these copies of the EUO scheduling letters had apparently not been delivered to the assignor, such a fact, even if true, would not excuse the failure of plaintiff’s assignor to appear for the duly scheduled EUOs since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff’s assignor by first class mail had been insufficient.”

This case goes one step further beyond the argument that mailing the document via certified mail requires proof that the Claimant received the correspondence, despite the fact that there is proof that the mailing was done through first class mail.  Rather, this case now says that proof of first class mailing is sufficient, even in the face of affirmative proof that certified mailing was mailed.

Mailing and the first time “objective” has landed in a medical rational case

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 2014 NY Slip Op 51766(U)(App. Term 1st Dept. 2014)

(1) The joy of mailing vendors

“In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant’s claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]), merely stating that items placed in its “mail bin” are picked up by a nonparty entity – Pitney Bowes Services, Inc. (“Pitney Bowes”) – which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery”

(2) On medical necessity

“Moreover, even beyond defendant’s shortcomings in proof concerning the mailing issue, the report of defendant’s peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff’s assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she “feels worse” after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate all triable issues regarding the medical necessity of continued acupuncture treatment.”

This one is interesting because the Court has finally held that an objective medical explanation is necessary to support a medical necessity defense or, contrariwise, prove that there is a medical rationale for further treatment in opposition to an insurance carrier’s examination.

On receipt and mailing

Medcare Supply, Inc. v Farmers New Century Ins. Co., 2014 NY Slip Op 51752(U)(App. Term 1st Dept. 2014)

(1) You just have to wonder what this means.  Does personal knowledge require having someone go to Oklahoma City to personally know how mail is received (that required to prove mailing), or is more akin to a business record practice where the personal knowledge can be a little less personal?  Floodgates abound.

“The defendant insurer failed to establish, prima facie, that it did not timely receive the plaintiff provider’s no-fault claim. In this regard, defendant relied on the affidavit of a claims representative employed in the Hicksville, New York office of non-party Farmers Insurance Exchange (“Exchange”), the entity which “administers claims” on defendant’s behalf. Although the affiant averred that there was no record of the underlying no-fault claim in his office’s paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims”

(2) The Court has found that a proof of mailing without affidavit is sufficient to prove an assertion that the document was mailed.

 

Mailing and denial issues

Urban Well Acupuncture, P.C. v American Commerce Ins. Co., 2014 NY Slip Op 51520(U)

“The action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal since defendant “failed to . . . establish that the denial of claim form was in fact mailed to the plaintiff” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564-565 [2005]; see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]). The affidavit submitted by the defendant insurer to establish proof of mailing – identifying the affiant as a “mailroom representative” of a nonparty to this action, State-Wide Insurance Company (“State-Wide”) – neither stated that the affiant actually mailed the claim denial to plaintiff nor, so far as appears, described defendant’s mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., 29 AD3d 547 [2006]), as opposed to those generally followed by State-Wide. Conspicuously absent from defendant’s moving submission was any allegation or showing that a jural relationship existed between defendant and State-Wide. Given these shortcomings in defendant’s proof, we have no occasion to consider whether defendant’s purported mailing of the claim denial to the individual treating acupuncturist rather than the employing professional corporation was proper (see 11 NYCRR 65-3.8[c])”

Nyack v. Metropolitan is best known as one of the first defective denial cases.  There is a line in this case (nobody paid attention to it) stating that an affidavit of mailing to the plaintiff was not presented.  I guess somebody forgot to link “state wide” and “american commerce” in the mailing affidavit.  It happens, and I am sure this mistake will not happen again.

I like how the court ducked the main issue here: Can a denial be sent to the treating acupuncturist as opposed to the P.C.  If the court follows Judge Ciaffa’s agency theory case and pertinent precedent regarding the duty to communicate, then the answer to the question should be an unconditional “yes”.

It was timely

Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 2014 NY Slip Op 51244(U)(App. Term 2d Dept. 2014)

Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.)

“The Civil Court denied defendant’s motion on the ground that defendant had not established that its procedure for mailing denial of claim forms had been followed. This appeal by defendant ensued.”

“Contrary to the determination of the Civil Court, the affidavit by defendant’s litigation examiner established, based upon her personal knowledge, that defendant’s procedures for mailing “

Insufficient proof that the IME letters were not received

By MD, P.C. v NY Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51232(U)(App. Term 2d Dept. 2014)

“In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit submitted by plaintiff was insufficient to rebut the presumption of receipt (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). “

This same paradigm played out in City Care Acupuncture v. NYCM, 39 Misc.3d(A)(App. Term 1st Dept, 2014) and in American Transit v. Bacchus, Index #: 310450/11.

What is ironic (or maybe not) is that all of these cases with these conclusory affidavits are from the  clinics that are associated somewhat with the Safire group, e.g., AB Medical, City Care Chiro, MK Chiro, BY MD, etc.  Draw your own conclusions.