Key Takeaway
Court ruling on burden of proof in no-fault medical necessity cases - who must prove surgical necessity when insurers successfully rebut presumptions.
This article is part of our ongoing medical necessity coverage, with 170 published articles analyzing medical necessity issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
The burden of proof in no-fault medical necessity disputes is one of the most consequential — and frequently misapplied — areas of New York insurance law. When a medical provider submits a claim for reimbursement under the no-fault system, the properly completed claim form creates a presumption of medical necessity. The insurer must then rebut that presumption, typically through an independent medical examination (IME) report or peer review. But what happens after the insurer successfully rebuts the presumption? Who bears the ultimate burden of proof at trial? The Appellate Term, Second Department, tackled this question in Dayan v Allstate Ins. Co., correcting a trial court that fundamentally misunderstood the burden-shifting framework.
This is not merely an academic exercise. The allocation of the burden of proof at trial frequently determines the outcome, particularly in cases involving surgical procedures where the evidence is closely balanced. A trial court that fails to properly shift the burden back to the plaintiff after the insurer rebuts the presumption will systematically favor providers — producing outcomes that are legally incorrect and economically distortive.
Case Background
In Dayan v Allstate Ins. Co., the plaintiff provider sought to recover the principal sum of $8,939.66 for the assignor’s right-shoulder surgery. The central dispute was whether the surgery was medically necessary and causally related to the underlying motor vehicle accident. At trial, the insurer presented evidence challenging medical necessity, which the Appellate Term found sufficient to rebut the presumption that attached to the claim form. The trial court, however, erred in its analysis of the burden of proof. After hearing both sides’ evidence, the court stated that “all things being equal,” it must find in favor of the plaintiff — effectively treating the initial presumption as a tiebreaker rather than a rebuttable inference. The Appellate Term reversed, holding that the trial court had applied the wrong standard.
Jason Tenenbaum’s Analysis
Dayan v Allstate Ins. Co., 2015 NY Slip Op 51751(U)(App. Term 2d Dept. 2015)
At issue in this case is which party bears the burden of proving at trial the medical necessity or the lack of medical necessity of the assignor’s right-shoulder surgery, i.e., whether the injury was causally related to the accident in question. This court has previously stated that where, in rebutting a presumption of medical necessity which attaches to a claim form, an insurer is [*2]successful in satisfying its burden at trial of demonstrating a lack of medical necessity, “it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary”
Here, the trial court went wrong when the following occurred: “The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66.
Well, all things are not equal. There is a presumption (an inference that must be rebutted) and sufficient evidence must be adduced to rebut the presumption. Then, and only then, must the medical provider tender admissible proof to satisfy its ultimate burden, i.e., proof that the service is medically necessary, etc.
Legal Significance
The burden-shifting framework in no-fault medical necessity disputes operates in three distinct stages, and Dayan clarifies each one. First, the provider’s properly completed claim form (NF-3 or equivalent) creates a presumption of medical necessity. Second, the insurer must rebut that presumption with competent evidence — typically an IME report or peer review opinion that articulates specific, non-conclusory reasons why the treatment was not medically necessary. Third, once the insurer satisfies its burden of rebuttal, the presumption is spent, and the ultimate burden of proving medical necessity by a preponderance of the evidence shifts back to the provider.
The trial court’s error in Dayan was treating the presumption as if it survived the insurer’s rebuttal. By stating that “all things being equal” favored the plaintiff, the court effectively gave the provider an irrebuttable advantage — transforming what should be a level playing field after rebuttal into a permanent thumb on the scale. The Appellate Term’s correction reinforces that once the presumption is rebutted, it disappears from the analysis entirely. The factfinder must then weigh the evidence de novo, and the plaintiff bears the burden of persuasion.
Practical Implications
For insurers, this decision confirms that a successful rebuttal of the medical necessity presumption is not merely procedural — it fundamentally shifts the burden to the provider. Defense counsel should ensure that the trial court is properly instructed on the three-stage framework and should object on the record if the court treats the presumption as persisting after rebuttal. For providers, the takeaway is equally clear: surviving past the insurer’s rebuttal does not guarantee victory. The provider must affirmatively prove medical necessity by a preponderance of the evidence, which in surgical cases typically requires testimony from the treating physician explaining why the procedure was both necessary and causally related to the accident, with reference to objective clinical findings.
Key Takeaway: In no-fault medical necessity disputes, once the insurer successfully rebuts the presumption of medical necessity, the burden of proof shifts back to the provider. The provider must then establish medical necessity by a preponderance of the evidence. A trial court that treats the presumption as a tiebreaker — finding for the plaintiff when the evidence is “equal” — commits reversible error.
Related Articles
- Understanding burden of proof in medical necessity challenges
- Building strong opposition to medical necessity summary judgment motions with proper evidence
- First Department’s approach to medical necessity in no-fault insurance cases
- How IME doctors must properly explain their medical necessity findings
- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Medical Necessity Disputes in No-Fault Insurance
Medical necessity is the most common basis for no-fault claim denials in New York. Insurers hire peer reviewers to opine that treatment was not medically necessary, shifting the burden to providers and claimants to demonstrate otherwise. The legal standards for establishing and rebutting medical necessity — including the sufficiency of peer review reports, the qualifications of reviewing physicians, and the evidentiary burdens at arbitration and trial — are the subject of extensive case law. These articles provide detailed analysis of medical necessity litigation strategies and court decisions.
170 published articles in Medical Necessity
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Frequently Asked Questions
What is a medical necessity denial in no-fault insurance?
A medical necessity denial occurs when the insurer's peer reviewer determines that treatment was not medically necessary based on a review of the patient's medical records. The peer reviewer writes a report explaining why the treatment does not meet the standard of medical necessity. To challenge this denial, the provider or claimant must present medical evidence — typically an affirmation from the treating physician — explaining why the treatment was necessary and rebutting the peer review findings.
How do you challenge a peer review denial?
To overcome a peer review denial, you typically need an affirmation or affidavit from the treating physician that specifically addresses and rebuts the peer reviewer's findings. The treating physician must explain the medical rationale for the treatment, reference the patient's clinical findings, and demonstrate why the peer reviewer's conclusions were incorrect. Generic or conclusory statements are insufficient — the response must be detailed and fact-specific.
What criteria determine medical necessity for no-fault treatment in New York?
Medical necessity is evaluated based on whether the treatment is appropriate for the patient's diagnosed condition, consistent with accepted medical standards, and not primarily for the convenience of the patient or provider. Peer reviewers assess factors including clinical findings, diagnostic test results, treatment plan consistency with the diagnosis, and whether the patient is showing functional improvement. Treatment that is excessive, experimental, or unsupported by objective findings may be deemed not medically necessary.
Can an insurer cut off no-fault benefits based on one IME?
Yes, an insurer can discontinue benefits after a single IME doctor concludes that further treatment is not medically necessary or that the claimant has reached maximum medical improvement. However, the IME report must be sufficiently detailed and the denial must be issued within 30 days under 11 NYCRR §65-3.8(c). The treating physician can submit a rebuttal affirmation explaining why continued treatment is necessary, forming the basis for challenging the cut-off at arbitration.
What is a peer review in no-fault insurance?
A peer review is a paper-based evaluation where a licensed medical professional reviews the patient's records and renders an opinion on whether the billed treatment was medically necessary. Unlike an IME, the peer reviewer does not examine the patient. The peer review report must be detailed, address the specific treatment at issue, and explain the medical rationale for the opinion. Generic or boilerplate peer reviews that fail to address the patient's individual clinical presentation may be found insufficient.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a medical necessity matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
