Another arbitration only rule bites the dust

Matter of Global Liberty Ins. Co. v Medco Tech, Inc., 2019 NY Slip Op 02167 (1st Dept 2019)

” Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). “

I always ask myself what is it that causes me to appeal certain cases. Sometimes, it is pure curiosity, sometimes it is because the lower arbitrator did such a horrible job that I cannot see record support for the award and other times it is because the lower fact finder created a legal precedent that is completely without legal support. You can figure that my level of success in categories number one and two are minimal. Category two represents the cases that are most personal to me (e.g., Miller v Elrac) and are heart-breakers because AAA just got the cases wrong. As to category three, I have gotten some bites, as can be seen here.

The issue in this case represented the perfect storm. Arbitrator Resko was not able to make a factual determination based upon the master arbitrator rule stating that post-surgical DME peer reviews and IMEs must make reference to the DME in order to be valid. That was not done here. An award was entered in favor of the Applicant. The master arbitrator gave it the Petrofsky “seal of approval” and I bounced into Supreme Court. FYI – the master arbitration program is a disgrace, but I can discuss that off-line.

My issue had nothing to do with this applicant, law firm or my dislike towards CPM and some of the abuses I see with extremity surgery billing. Some people think these appeals are personal, but this was not. It was based upon a rule of law that I found not well reasoned and I will say was “stupid”. I was hesitant about appealing this, but I went to an arbitration, saw a certain law firm with many surgery cases “cite” to voluminous master awards involving this issue and I said to myself that I should pull the trigger. The beneficiary of this rule will probably be Geico and Allstate given their presence in the market. But, I never want to see this rule applied in any of my cases. I got my wish.

If you look at the oral arguments, my main point is that that the medical necessity or causal relationship should not be barred due to a made up rule that runs counter to established precedent. I told one of the judges I do not even care if I win or lose at the end, just apply a rational precedent. The Court agreed. My bill for this case? Satisfaction that reason prevailed.

Aggravation of a pre-existing injury

Ortiz v Boamah, 2019 NY Slip Op 01129 (1st Dept. 2019)

I am always interested in how issues of causation play out in the statutory no-fault world

(1) Prima facie: pre-existing injury. ” Defendants submitted plaintiff’s medical records and the affirmed report of an orthopedist who, following examination and review of the medical records, found that plaintiff had preexisting conditions and no evidence of injuries caused by trauma  “

(2) “An explanation that the plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, rendering the plaintiff symptomatic, is sufficient to raise an issue of fact as to causation (id. at 486 [“To the extent plaintiff’s physicians asserted that plaintiff Pham had degenerative joint disease which was common for her age, that she was previously asymptomatic, that the accident aggravated her underlying degenerative joint disease, and that trauma increases the rate of disc desiccation, rendering her now symptomatic, this was sufficient to raise an issue of fact as to causation”] [internal quotations marks omitted] “

(3) ” Plaintiff submitted the reports of both her treating neurosurgeon and treating chiropractor, each of whom independently opined that because she had no history of symptoms or medical treatment for her spine before the accident, her injuries were caused, or at least aggravated by the motor vehicle accident. Plaintiff’s neurosurgeon noted that although plaintiff has chronic degenerative spinal stenosis and spondylolisthesis, she had no prior history of back pain and leg pain. He opined that “[i]t is not unusual for such a chronic pathology to become aggravated by a relatively mild-to-moderate trauma.” He further opined, within a reasonable degree of medical certainty, that the motor vehicle accident aggravated plaintiff’s latent asymptomatic age related degenerative spine conditions and was the cause of her symptoms. Plaintiff’s chiropractor also opined that because plaintiff did not seek medical treatment for her preexisting back conditions prior to the accident, the accident had activated, accelerated, or aggravated those conditions as well as causing additional damage. This is sufficient to raise an issue as to causation”

Trip and fall to zero

Rambarran v New York City Tr. Auth., 2019 NY Slip Op 00484 (2d Dept. 2019)

“Here, the plaintiff’s evidence at trial included her own testimony, the testimony of her expert engineer, as well as photographs identified and marked by the plaintiff showing the alleged defect as it existed at the time of the subject accident. Accepting such evidence as true, and affording the plaintiff every favorable inference that may be properly drawn from the facts presented (see Szczerbiak v Pilat, 90 NY2d 553, 556), the alleged defect was not actionable. Considering the appearance and dimensions of the protruding bolt, as well as its location on the sidewall of the staircase, directly underneath a handrail and away from the walking surface of the stairway

This was an interesting case as it involved a trip and fall and a $650,000 jury verdict. The Second Department almost seems to intimate that the plaintiff sought out this defect and non-suited this case.

“Out of scope, out of mind”

Daniele v Pain Mgt. Ctr. of Long Is., 2019 NY Slip Op 00093 (2d Dept. 2019)

” The Supreme Court also should not have allowed the plaintiff’s experts, Jason Brajer and Paul Edelson, to testify as expert witnesses in emergency medicine. “[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Whether a particular witness is qualified to testify as an expert is ordinarily a discretionary determination (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517), which will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see id. at 517-518). Brajer was board-certified in anesthesiology and pain management. He did not testify that he had training in emergency medicine, and did not adequately explain how he was familiar with the standard of care in emergency medicine based upon his prior experience of being called to the emergency room to prepare patients for surgery, or evaluating urgent back pain (see Galluccio v Grossman, 161 AD3d 1049, 1052; cf. Ocasio-Gary v Lawrence Hosp., 69 AD3d 403, 405). Edelson, a pediatrician, had minimal experience in emergency medicine. More importantly, that experience, which consisted of moonlighting at a hospital for five hours per week in the late 1970s and early 1980s, was simply too remote in time to qualify him to testify as an expert in emergency medicine as of September 2010, the time of the treatment at issue in this case. Edelson otherwise failed to demonstrate that he possessed the specialized knowledge, training, or education that would have qualified him as an expert in this area “

Use and Operation

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.


Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 51815(U)(App. Term 2d Dept. 2018)

“Moreover, even if defendant had established that Florida law applies here, defendant relied upon an annexed payment log to demonstrate that policy limits in the amount of $10,000 had been exhausted; however, the affidavits submitted by defendant failed to establish that the payment log constituted evidence in admissible form (seeCPLR 4518 [a])”

Oh the business record rule.  Carriers need to make sure in the rare instance this issue comes up, the prefatory paragraph “2” business record syllogism is present.

Also, if you alleged that Florida law applies and you lose, get ready for $800 an hour attorneys fees.

Post judgment interest at 9%?

Craniofacial Pain Mgt. v Allstate Ins. Co., 2018 NY Slip Op 51825(U)(App. Term 2d Dept. 2018)

“The amount of a partial satisfaction, if any, should be calculated by determining the total payments received as of a certain date, and deducting from that sum the marshal’s fee, the interest accrued to that date, and the poundage fee due to the marshal upon the collection of such sum (see Ifudu v Ross, 60 Misc 3d 140[A], 2018 NY Slip Op 51199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In this regard, we note that plaintiff is entitled to receive only simple interest at the statutory rate of nine percent per year from the date of the entry of the judgment through the date of the payment of the judgment (see CPLR 5004; B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]), and that the marshal’s notice of levy and sale served upon defendant inexplicably stated interest in the amount of $376,324.80. We further note that defendant demonstrated, by showing the submission to a New York City marshal of a check which the marshal endorsed, that defendant had paid the amount of $9,988.32 (see CPLR 5021 [a]).”

But See McMillan v. Unionamerica Resinsurance Co.,  70 AD2d 659 (2d Dept. 1979)(“Furthermore, the judgment properly provided that interest on the award continue to accrue at the rate of 2% per month “pursuant to statute,” rather than at the legal rate of 6% per annum specified in CPLR 5004. CPLR 5004 expressly provides for the application of interest rates other than the legal rate of 6% per annum “where otherwise provided by statute”. In the instant case, the interest rate of 2% per month applied by Special Term is prescribed by subdivision 1 of section 675 of the Insurance Law”)

First Department applying a stringent default vactur standard

Matter of Tri-State Consumer Ins. Co. v Hereford Ins. Co., 2018 NY Slip Op 08249 (1st Dept. 2018)

“Although “there exists a strong public policy in favor of disposing of cases on their merits, . . . this policy does not relieve a party moving to vacate a default from satisfying the two-pronged test of showing both (1) a reasonable excuse for the default; and (2) a meritorious defense to the action” (Johnson-Roberts v Ira Judelson Bail Bonds, 140 AD3d 509, 509 [1st Dept 2016]). Despite Tri-State’s contention that this Court has excused defaults caused by an attorney’s inadvertent failure to make a court appearance due to lack of notice (see Toos v Leggiadro Intl., Inc., 114 AD3d 559 [1st Dept 2014]), “claims of law office failure which are conclusory and unsubstantiated’ cannot excuse default” (Galaxy Gen. Contr. Corp. v 2201 7th Ave. Realty LLC, 95 AD3d 789, 790 [1st Dept 2012]).

At least two of Tri-State’s multiple defaults lack a substantiated excuse – its failure to submit opposition, and its failure to appear at the November 16, 2015 hearing despite counsel’s assignment two months prior – and those incidents, in addition to a pattern of dilatory conduct, warrant affirmance of the order on appeal.”

For a Court that historically excuses defaults, this was a bit harsh.  It also appears that a meritorious defense existed, hence the failure to address the merits of the action.

Serious injury: PL 10.00(10) v. Ins Law 5102(d)

People v Garland, 2018 NY Slip Op 07927 (2018)

This is more esoteric but an interesting read.  Factually, Defendant shot the victim and a bullet remained in the victim’s leg.  The People returned a first-degree assault indictment (among other lesser crimes), requiring proof of “serious injury”.  The jury found that the injuries were “serious” and the Defendant was convicted on the top count of the indictment, first-degree assault.  The Appellate Division affirmed and the Court of Appeals affirmed, with two dissents.   The dissent is interesting:

“[O]ne instructive comparison is to our decisions in “no-fault” automobile insurance cases. We regularly reject the sort of evidence of injury the victim here suffered as sufficient to support a jury verdict for the plaintiff; often we deem it insufficient to create a triable issue of fact as to whether an injury was serious (see e.g. Lopez v Senatore, 65 NY2d 1017 [1985], Gaddy v Eyler, 79 NY2d 955 [1992], Scheer v Koubek, 70 NY2d 678 [1987]). The insurance law’s definition of “serious injury” is quite similar to the definition of “serious physical injury” in the Penal Law § 10.10(12). The plaintiffs in those cases, of course, have a much lower burden of proof than do the People here, who must prove the seriousness of the physical injury beyond a reasonable doubt. Nevertheless, disregarding the kind of analysis we regularly employ in those cases, the majority concludes that the victim’s “slight pain” and “little problems” are legally sufficient to establish “serious physical injury.”

The requirements set out in Stewart are similar to our approach in the no-fault context, where we have said that “subjective complaints alone are not sufficient” to establish serious injury, and that claims must be supported by “objective evidence” (Toure v Avis Rent a Car Sys., 98 NY2d 345, 351 [2002]). Of course, the crucial difference between that regime and the elements required in assault statutes is that no-fault cases are civil, and criminal prosecutions require a much higher standard of evidentiary proof than civil suits. The majority’s opinion rests on less, based on assertions that are trivial or wholly speculative. We would not, in a no-fault or malpractice case, accept evidence about a plaintiff’s injury from a doctor who had never examined a patient and whose most recent review of medical records was four years distant.

Someone who shoots into a crowd and strikes an innocent teenager deserves to be harshly punished. But the Legislature, not the courts, have the responsibility to enact statutes criminalizing behavior and prescribing ranges of punishments. The Legislature has determined that the degree of actual injury to the victim is a crucial determinant of the amount of punishment to be meted out — even if the insubstantiality of the injury is the result of pure dumb luck. The Legislature has dealt with the use of a firearm to cause an injury separately, which is why second-degree assault can be established either by causing serious physical injury, or by causing physical injury by use of a deadly weapon. The Legislature has also attached a separate, substantial penalty (up to 15 years of imprisonment) to possession of a handgun, of which Mr. Garland was convicted. Those are legislative enactments to which we should adhere. Mr. Garland’s maximum sentence for second-degree assault is seven years; for first-degree assault, it is 25. By treating what is plainly not a serious physical injury as if it were, we are shredding the statutory scheme adopted by the Legislature and imposing one of our own making. I would vacate his first-degree assault convictions (leaving intact his conviction for Criminal Possession of a Weapon in the Second Degree) and remit the case for further proceedings.”

Objective reasons not necessary to prove an EUO no-show defense

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co., 2018 NY Slip Op 51653(U)(App. Term 2d Dept. 2018)

“Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d, 11th & 13th Jud Dists 2018]).”

One need to forget this lesson.  That said, a proper and timely objection changes the calculus.

LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2018 NY Slip Op 51655(U)(App. Term 2d Dept. 2018)

Furthermore, defendant was not required to set forth objective reasons for requesting the 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] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]”