Appellate Division opines on lack of medical necessity defense

Arnica Acupuncture PC v Interboard Insurance Company, 137 AD3d 421 (2016) is the appeal Jason discusses below. The First Department reversed the Appellate Term and granted the insurer summary judgment. The provider’s affidavit did not adequately answer the medical expert’s objective findings.

Historical note: Arnica (March 1, 2016) concerns a particular IME rebuttal and its failure to address objective findings; Jason’s broader observations below are his contemporaneous commentary, not additional holdings.

Last reviewed: September 2026.

The holding and Jason’s account

The March 1, 2016 opinion says the supervising acupuncturist’s affidavit was not based on an examination of the patient and did not address the objective tests in the insurer’s report. On that record, subjective complaints did not overcome the objective findings.

The official reporter uses Interboard in the caption; the original post called the insurer Interboro. The citation above follows the reporter. The opinion also lists Jason as counsel for the appellant, supporting preservation of his first-person account rather than replacing it with a generic case summary.

His discussion below includes propositions the decision does not separately resolve: whose examination another provider may use, what makes supporting records admissible, and how an IME rebuttal differs from a peer-review rebuttal. Read those as Jason’s 2016 analysis. This short opinion does not establish every proposition in that discussion or make a clinical determination about all pain-relief treatment.

Jason’s original comment

Jason’s March 2016 account follows unchanged. The official opinion identifies him as counsel for the appellant. His comments about using another examiner’s records, contemporaneous proof, arbitration and peer-review rebuttals go beyond the court’s short holding; they are preserved as historical opinion, not current evidentiary instructions.

This was my second foray at the Appellate Division (this time as a defendant and with permission from the Appellate Division) relating to the issue of “lack of medical necessity”.  Specifically, what is necessary to defeat a facially proper IME.

I will be quite frank.  I have seen the Appellate Terms hold that facially insufficient affidavits are sufficient to raise an issue of fact on the issue of medical necessity in opposition to an IME report.  e.

This opinion is important relative to the following language: “Contrary to the Appellate Term’s finding, plaintiff’s supervising acupuncturist’s affidavit failed to raise a triable issue since it was not based on an examination of the patient, nor did it address or rebut the findings of objective medical tests detailed in the sworn report of defendant’s medical expert. The insured’s subjective complaints of pain cannot overcome objective medical tests”

Three points.

(1) The report was not based upon an examination.

The examination does not have to be performed by the affiant.  The examination, however, has to be in the record and in admissible form if a non treating provider wants to use somebody else’s examination.  The issue of “contemporaneous” will have to be litigated another day.

(2) Must rebut finding of objective medical tests

This is where I think many affiants will get caught up.  The recorded examination must itself be based upon sufficient objective evidence.  This “objective basis” I think is where providers may get hung up.  One of the reasons a provider may chose litigation over arbitration is because the provider is not good at documenting treatment, i.e., objective testing.  The objective requirement will prove to be problematic to some providers.

(3) Subjective complaints alone will not fly.

One of the frustrating aspects of arbitration is when the  Applicant harks on the subjective pains as a basis for further treatment or when a doctor in court on cross-examination has to admit that conservative treatment is palliative and will give short term relief to pain.  I would surmise the relevant question becomes whether the treatment will assist in alleviating the documented objective symptomatology.

Would I call this decision ground breaking?  I would say it is the culmination of many years of appeals on this issue.

The issue of peer reviews has not been touched by this case, and I hearken to add that I think a peer review rebuttal is probably a lot easier to put together than an IME rebuttal.  Peer rebuttals can be predicted upon fantasy; IME rebuttals must be predicated upon fact.

Connect to the Encyclopedia

Start with the medical necessity and peer-review topic hub for the archive’s case directory. Compare these related records:

• Huntington Regional Chiropractic: medical affidavits answered two IMEs
• Hunt City: competing chiropractic opinions left a trial issue
• AP Diagnostic: the clinical reason for an MRI
• Glenn Segal: inadequate opposition to two IME reports
• Amato: reversal after trial on post-IME treatment

For review of a particular no-fault dispute, contact the firm with the relevant reports, submissions and orders.