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.
