Only in no-fault can a Civil Court JHO "reverse" the holdings of the Appellate Divisions and the Court of Appeals

You can find this case from the January 24, 2010 law journal, reproduced on David Barshay’s No-Fault Paradise. That said, I have three points I am going to make.  I will leave it up to Geico’s counsel to fill in the blanks – not my job.  I am also taking a really strong position; a position I earnestly take as a practitioner, not as a defense attorney.

Point 1: Where did this come from? It was not from a civil court, intermediate appellate court or federal court interpreting New York law.

“The responsibility for administering the Insurance Law and, in particular, fair claims settlement under the No-Fault Law rests with the Superintendent (see Insurance Law §§ 301, 5106[a] ). For purposes of calculating attorneys’ fees, the Superintendent has interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not-as the courts below held-each separate medical bill submitted by the provider. OPINION LETTER ANYONE? Because this interpretation is neither irrational, unreasonable, nor counter to the clear wording of the statute, it is entitled to deference. Thus, this Court accepts the Insurance Department’s interpretation of its own regulation and, upon remittitur, directs Supreme Court to calculate attorneys’ fees based on the aggregate of all bills for each insured.”

Point 2: “Whether filing and publication is required depends upon the nature of the policy; if it is merely an interpretation or explanation of a preexisting rule or general policy, filing is not required.”  No comment.

Point 3: Who am I?

Furthermore, the defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by submitting evidentiary proof that no fee schedule for the reimbursement of acupuncture treatments existed in 2001, and that it properly limited payment to “charges permissible for similar procedures under schedules already adopted” (11 NYCRR 68.5 [b]; see Insurance Law § 5108; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004]). In opposition to the cross motion, the plaintiff failed to raise an issue of fact as to whether reimbursement for its acupuncture services was properly limited.”

Let sleeping dogs lie.  Move on already….


29 Responses

  1. I’m totally cornfused…

    Does the Law Journal case not identify the court?

    The case is not coming up on Lexis yet, which has NYLJ cases.

    Why is everyone playing hide the ball here?? ZUPPA HELP!!!!

    1. I think there is usually a 1-2 week lag with lexis’ and westlaw’s reporting of the NYLJ cases. That is why you are confused. I know if I go to the NYLJ online site (which costs money) I can find it. Sorry Sun.

      Maybe the man at his Herbert Street hide out can assist you?

  2. This is retired Judge now JHO Spodek. I have the decision. J.T. the logical application of law to the facts is what counts. Not the origin.

    I remember being faced with the decision of a civil court Judge in an important Supreme Court case. Of the hundreds of cases cited this case was the only non appellate division or Court of Appeals case. I read the decision. It was brilliant.

    Hah. Let me launch into a J.T. attack based upon the fact that its an “obscure opinion of a New York City Civil Court Judge.” Then I read the name of the Judge. Judge Saxe — the brilliant Justice that currently resides at the Appellate Division First Department and will certainly one day reside at the Court of Appeals if not higher.

    I ignored the case and was wise to do so.

    Apparently the sleeping dogs woke up J.T. Your strong stance has cut no ice with them dogs.

    Go Jets because Rex Ryan’s strong words apparently cut no ice with the Steelers.

    1. The clowns are running the circus Ray. I dont like the circus. I hate the way they treat the elephants.

    1. This is the first time a blog owner has outwardly used my blog to advertise something on his or her own blog. I feel honored, so here is that above link. Perhaps I will return the favor one day if Larry would be so kind.

      Actually, Larry posted an MUA arbitration decision that is quite interesting. I think the thought process of that arbitrator is consistent with how the courts seem to be adjudicating contested medical procedures.

  3. This issue is: is this good law or not. I dont mean whether it is appellate term. That misses the point. Is the decision correct? Lets get beyond the hyperbole. This is an interesting decision. The plaintiff attorney certainly thought outside the box on this one. JT, you say “only in No-Fault” Well, only in no-fault do we get a Dan Medical. That is bad law (Dan Medical), bad reasoning and bad evidence. JT, you and I have had discussion on topics. You are among the most insightful of no-fault attorneys. What do you think about the reasoning of this decision? I would really like to know from a stict legal standpoint – and if you indicate no comment, I understand why. We all have clients to whom we must take contrary position to theirs at risk of thwarting business opportunities. But its your blog … why is this bad law?

    And if you ask rhetorically why this is good law – dont answer a question with a question, dammit. Lol

  4. Which set of clowns J.T. There are so many in this field. Okay let me see what Rogak has to say. I might warm up with a little Rush Limbaugh to get in the mood.

    “The decision is vacuous …” in the Rush voice.

  5. Hey Kurt well said. How ya been. Nice to hear from you. How’s the family. Long time no hear.

    Thanks J.T. for letting me use your blog for my social networking needs. I read the Rogak take. It was Rogakian. After I read it I received notification that someone hit up my bank account through electronic means for $20 bucks. You think it was him?

  6. You and any other attorney are always welcome to post on my blog, JT. Curious that you characterized my post as “advertising” — I’m not selling anything. I see us all as members of a community, even though I’m never invited to any of the barbecues.

    1. Thank you for the invite Larry. I am not sure DB, Mr. Zuppa, DT, RM and the other bloggers ever had a bbq. I will say this: as long as you wear a kiss the chef hat and man the charcoals, I will make sure an invitation is sent out to you should we have one. I tend to burn hamburgers and under-cook chicken.

  7. Jason, I have to say that after taking a long hard look at this issue that I find the analysis of the decision to be sound and rational. I would like to see for myself whether the factual underpinnings are correct. If they are then I think that it would be the prudent thing to shake that doggy and wake him up. Wake up doggy — woof woof

    1. In response to your post and Kurt’s comments, I will elaborate a little bit more on my thought process. I was reluctant to post because I hate to do free work for others, but so be it. I also will not $20 for an opinion because I think it is inappropriate. Larry Rogak says we are a community, so I will add this to the community chest. Here is the summary of my thought process.

      68.5(b) says that for all services where there is no fee schedule rate in place, the provider may charge the reasonable and customary rate for the geographic location that the services are rendered. The general rule in the fee schedule (See BR codes) is that were there is no explicit level of compensation, resort should be made to a comparable code where possible. This is why providers who use CPT Code 20553 should have their bills reduced to 20552 * .5 (the amount of injections).

      The DOI opined that the comparable rate and the geographically reasonable rate for acupuncture, through an agency opinion letter, is the chiropractor rate or the medical rate. Ins Law 301 says quite explicitly that the DOI has the power to interpret its own regulations. This may be accomplished through circular letter. If you read the cases I originally posted, the first is LMK v. State Farm (COA), the second was Forrest Chen (App. Div. 2nd Dept), you will see that arguments to the contrary have been squarely rejected.

      Also, from a statutory construction stand point, shouldn’t a provision of the Insurance Law (Ins. Law 301) take precedence over the SAPA when the issue involves the interpretation of an insurance regulation? I think the cannons of statutory interpretation state this. It is for this reason that I cannot go into County Court on a criminal matter and move for summary judgment; rather, my remedy is limited to a CPL Article 100 motion. The same goes for a Family Law or Surrogates Court matter.

      Here, the DOI interpreted 68.5(b). It has every right to do this. It also acted in accordance with the BR rules of the workers compensation fee schedule through finding a service it believed was similar. The Court of Appeals and the App. Div. have approved of this reasoning.

      Plaintiff’s argument therefore lacks merit. I do not think any of this is rocket science or novel. This is what the law has become over the last 3-5 years.

      By the way – if anyone quotes this or construes it and does not attribute it to this blog, it shall be considered plagiarism and I reserve the right to seek whatever civil remedies exist. All of my entries are copyrighted. Thank you.

  8. I have stolen Jason’s Posts David. And let me tell you they are alot more Steeler friendly — go Green Bay — then the posts I stole from you. When I copy a J.T. Post and paste it — it comes out clean. Your’s always had this strange shading. I used them anyway and just write: (Emphasis added to my own words)

    What does that say about the App Term’s decisions saying: “Its the Chiropractic rate … basta.” I don’t see the room for interpretation.

    Or did the App Term use street logic. “If you give an insurance company the choice of pay less or more — they’ll pay less; so what in God’s name is the DOI’s mention of the M.D. rate? It is the DOI trying to appear fair to the public instead of being a shill of the corporations. Well hell we’re a Court and we don’t have to appear fair”

    From the cheap seats: “But Term the People have no bread.”

    Term: “Let them eat cake … remove that heckler.”

    Zuppa: “It’s me … I’m the speaker from the cheap seats”

    Term: “Have him shot at sunrise.”

    Zuppa: “I hope its cloudy tomorrow.”

  9. The WC Fee Schedule for chiro-acupunture may have been botched administratively. However, wasnt GEICO justified in relying on published fee schedules in reducing the billed amount in accordance with the published fee schedule? It would appear that GEICO would still be able to rely on the argument that it paid the prevailing rate in the geographical region as it was told to do by the Appellate Term and by the workers comp fee schedule. Isnt this case, however interesting, much to do about nothing?

    1. I think this case really is much to do about nothing. Geico acted properly in this case.

      While the providers are unhappy with the DOI’s position, the shoe many times is on the other foot. For instance, the DOI has said that a carrier that does not issue a global denial, thereby putting the injured person and all treating providers on notice that further services will not voluntarily be compensated, may not later rely on an IME cut-off defense. Many carriers have cried foul. Rogak always seems to intimate that the carriers should not follow the DOI’s opinion letter – for what reason I cannot fathom. The DOI in another opinion letter said that carriers may not discuss the waiving of interest in the negotiating a settlement of claim. The DOI in yet another opinion found that Claimants who are receiving lost wages and are ready, willing and able to go back to work but cannot because they have been replaced may still collect lost wages. This has been proven to be quite detrimental to the carriers in the current economy.

      The point is that sometimes we just have to move in life. The DOI’s opinion is proper. While some always attempt to cite to empirical data that might show otherwise, the inner workings of the fee schedule and Ins Law 301 foreclose this type of challenge. The proper vehicle to fight this battle is to try to have the DOI retroactively rescind the opinion letter. And even if this were done, there is a good estoppel argument that the carriers have in their back pocket.

  10. Judge J.T. We’re going to see but not where and how you think.

    Listen the Superintendent does not follow its own rules when the rules pertain to insurance companies. Give me a break … a real big break with the opinion about insurance companies not being allowed to negotiate interest.

    Yeah that opinion letter has a real bite to it. And if you asked the Superintendent to enforce it they would not. And if you article 78ed them — well the Court would say too bad.

    That’s the first thing they negotiate.

    In the end the People are going to have to be informed about the unresponsiveness of their government and the misconduct of the insurance companies. The market place will have to decide after the consumers are informed.

    I have started building a war chest from some big contributors. The public will be informed.

  11. I hate this string. It became like the Mets/Bernie Madoff thing. Speculation and conjecture. Someone please take this decision and its reasoning and get it out there. “That’s why they play the game.”

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