Key Takeaway
Therapeutic Physical Therapy preserved an eight-unit fee defense and sent it to a different arbitrator. Preservation was not proof of the defense.
This article is part of our ongoing fee schedule coverage, with 118 published articles analyzing fee schedule 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.
Global Liberty v Therapeutic Physical Therapy (2017) sent an eight-unit fee-schedule defense to a different arbitrator for a decision on the merits. The First Department found that the defense had been preserved. It did not find that the insurer had already proved it.
Historical note: Therapeutic Physical Therapy (2017) concerned services before April 1, 2013; Oleg’s Acupuncture (2018) separately applies the later excess-fee nonpreclusion rule to 2014 services.
Last reviewed: September 2026
Preservation was the issue on appeal
The claims concerned services before April 1, 2013. The insurer said it had already paid another provider for eight units on some of the same dates. The lower arbitrator rejected the defense as insufficiently specific because the denial did not name that other provider.
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The master arbitrator then treated the award as though the lower arbitrator had considered and rejected the merits for lack of evidence. The First Department found that treatment arbitrary. It held that checking box 18 of the NF-10 to raise the fee-schedule defense adequately preserved the issue in this case.
What the remand required
The court vacated the relevant portion of the award and ordered arbitration of the defense before a different arbitrator. Evidence of the other services and payments still mattered at that next stage. The opinion did not abolish all denial-specificity requirements or rule that every eight-unit defense succeeds.
The older service dates also explain why the later excess-fee nonpreclusion rule should be kept separate from this preservation dispute. Jason’s account below describes the path to the appeal, including his reaction to the earlier rulings.
Jason’s historical commentary
Jason’s account of the arbitration and appeal is retained as historical commentary. His recollections and criticism go beyond the reported opinion; the court ordered a new arbitration on the fee defense rather than awarding a final merits victory:
So the arbitrator and master arbitrator are nameless, but you can look them up if you are curious – this was an e-filed case. I remember this case vividly. I appeared at the arbitration. The lower arbitrator told me she follows the Maslow rule which states that the disclaimer must set forth a prima facie defense. I told the lower arbitrator (who I never met before) that she was wrong, and I remember she was indignant at my comment. Perhaps I came off too strong. I was furious and stated that I did not care what she did because I will take the case up to the Appellate Division. She followed through on her promise and I followed through on mine. Man did I eat my words because the Master Arbitrator gave me the Petrofsky treatment and Justice Tapia said he thought the lower arbitrator’s analysis was spot on. I was starting to feel as though I did not understand the law anymore. Sometimes you read affirmations and opinions and you get the feeling that perhaps it is you, not them.
Again, the loss of Norman Dachs (prior to his illness) could be felt in the master arbitration system, as the master failed to address controlling case law on the box #18 issue.
As happens all too frequently, it took the Appellate Division to straighten this out If I only had Geico’s resources and volume, I would probably own half the docket at the Appellate Division, First Department (kidding, well kind of… not really).
The lesson here is that if you feel you have a solid legal argument, do not let AAA or a Supreme Court judge let you down. You will win some and lose some. Just make sure your papers are in order.
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Fee-schedule defense topic hub
- First Aid: no summary judgment on the bundled-service claims
- High Quality: denial of an insurer’s dismissal motion
- LVOV: fee proof sufficient for dismissal
- S.O.V.: partial dismissal and the surviving claims
- Liberty Chiropractic: the daily-unit evidence was insufficient
For review of a particular bill or denial, contact the firm. The decision and commentary above concern the stated record; they do not determine a new claim.
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
Fee Schedule Issues in No-Fault Insurance
The New York no-fault fee schedule establishes the maximum reimbursement rates for medical treatment provided to injured motorists. Disputes over fee schedule calculations, coding, usual and customary charges, and the applicability of workers compensation fee schedules to no-fault claims are common. These articles analyze fee schedule regulations, court decisions on reimbursement disputes, and the practical challenges providers face in obtaining appropriate payment under the no-fault system.
118 published articles in Fee Schedule
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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.
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