Trial de-novo win where carrier did not respond to verification objection letter and wins.

Global Liberty Ins. Co. v Jonathan Lewin, M.D., P.C., 2017 NY Slip Op 50897(U)(Sup. Ct. Nassau Co. 2017)

Here are the cliff note facts.

• Carrier delayed surgical bill for (a) films and (b) MRI films.
• Delay letters were sent to MRI center and Surgeon
• Surgeon write backs and says we do not have MRIs, get them from Doshi.  Here are HIPPA requests.
• Carrier did not respond

Lower arbitrator  applied the rule that the carrier who does not respond to communications always loses.  Here is the quote from the lower arbitrator (17-15-1015-7475):

Respondent issued 2 requests for additional verification from Applicant provider here. The requests are dated 4/28/15 and 5/28/15. Respondent was seeking an AOB, surgical photos from the surgeon and MRI films from Doshi Diagnostics. Respondent also provides the 2 verification requests sent to Doshi Diagnostics. It is Respondent’s position that these requests were never complied with. Applicant points out that on May 21, 2015, Excel Surgery Center sent the surgical photos requested to Respondent. Applicant argues that this was never acknowledged by Respondent. Respondent argues that their 2nd verification dated 5/28/15 was their response to the 5/21115 response by Excel Surgery Center. Applicant argues that that is an insufficient response because it is identical to the first verification request dated 4/28/15 and in no way acknowledges the receipt of the films. In addition, Applicant provide an Affidavit from a Mike Manzo, billing manager for MD Capital Advisors, a billing company that handles the billing for Applicant provider. This is a very credible Affidavit. He explains that they attempted to respond to the verification request on May 21, 2015 via FAX to Respondent, but the FAX did not go through. Thereafter, they mailed their response to Respondent postmarked June 2, 2015. They provide a copy of the return receipt green card stamped June 2,
2015 and signed by someone at Respondent insurance company. What was sent was a letter indicating that they could not provide the films and pictures because it was not in their possession but in the possession of Doshi Diagnostics and Excel Surgery Center. They attach medical authorizations for Respondent to use to help to obtain those items. Applicant never received any response from Respondent after June 2,2015 . There was never any other correspondence received from Respondent. The claim was neither paid nor denied.

I find in favor of Applicant here. The evidence is clear here that Applicant complied with the verification requests and that there was never a response from Respondent after the June 2, 2015 compliance. As such, I find the claim overdue
and owing and I find in favor of Applicant.  So too here, I find that Applicant complied with the verification requests and there never was a response from Respondent. The claim is overdue and owing.

Master Arbitrator rubber stamped it.  Award was over $5,000.00

Trial de novo was commenced.  Court held as follows:

(1) Based upon the affidavit of Regina Abbatiello, plaintiff’s no-fault claims adjuster, plaintiff establishes that the surgery was performed on March 24, 2015, and the bill from defendant was received on April 9, 2015. The bill was delayed pending receipt of operative photographs and MRI films. By written request dated March 20, 2015, plaintiff requested, inter alia, “a copy of the R/Shoulder MRI films” from Doshi Diagnostic Imaging Services. Apparently, plaintiff did not receive the MRI films, and it sent a second written verification request to Doshi dated April 20, 2015.

Not having received the MRI films, plaintiff, by written requests dated April 28, 2015 and May 28, 2015, notified defendant and requested a copy of the right shoulder MRI films from defendant. The letters are addressed to Jonathan Lewin MD PC, and they state in relevant part, “[a]lso awaiting a copy of the R/Shoulder MRI films from Doshi Diagnostic MRI which were requested from the MRI facility and the doctor’s office. Once received the claim will be reviewed and processed.” Ms. Abbatiello’s affidavit avers that the MRI films were never received from either Doshi or from defendant Lewin.

Based upon the foregoing, plaintiff has established its prima facie entitlement to summary judgment as a matter of law that the claim is not overdue, since the additional verification remains outstanding, and that defendant is not entitled to reimbursement for no-fault benefits a/a/o Mary King related to the motor vehicle accident that occurred on December 17, 2014

(2) The affidavit of Mike Manzo, billing manager for MD Capital Advisors, states that MD Capital Advisors is the third party billing company for FJ Orthopedics PLLC, which is not a party to this action. In fact, the affidavit appears to have been submitted in connection with the prior arbitration entitled FJ Orthopedics PLLC / Mary King, Applicant and Global Liberty Insurance Company of New York. Thus, it is unknown to the Court how Mr. Manzo’s affidavit is germane to defendant Lewin named in this action. Assuming, however, that his affidavit is relevant, because it relates to the assignor in this matter (Mary King), Mr. Manzo speaks to the issue of the surgical photographs, which is not the subject of the summary judgment motion. Moreover, his affidavit is vague as to “the verification response” and “requested documents” allegedly submitted to plaintiff on June 2, 2015; however, the response was likely the letter on FJ Orthopedics letter head, signed by Mike Manzo, dated May 21, 2015, which is annexed to Manzo’s affidavit. That letter states that, “your request for MRI films and color photos of surgey (sic) for the above mention (sic) claim is overly burdensome as neither our client FJ Orthopedics nor the patient Mary King does not (sic) have access to the actual films. . . The films are in Doshi Diagnostic’s possession . . . therefore, we enjoin you to obtain the actual films . . . with the attached medical authorizations signed by Mary King.”

Court conclusion

(3) Defendant’s submissions do nothing to raise a triable issue of fact as to the failure to provide the MRI films, nor do the submissions controvert the established fact that plaintiff attempted to get the films directly from Doshi first, by sending a first request and then a follow-up request, and when it received no films, plaintiff notified defendant of the request. Plaintiff sent the verification requests directly to Doshi, and plaintiff also timely informed the applicant, the defendant in this action, of the nature of the verification sought, and from whom it was sought, after the initial requests went unsatisfied (Doshi Diagnostic Imaging Servs. v. State Farm Insurance Co., 16 Misc 3d 42[App Term 2d Dept 2007]; see also Advantage Radiology, P.C. v. Nationwide Mutual Insurance Company, 55 Misc 3d 91 [App Term 2d Dept 2017]).

(4) The fact that FJ Orthopedics, albeit not a party to this action, may have provided plaintiff with a HIPPA authorization for the films does not constitute a response to the request for verification. Plaintiff did not need a HIPPA authorization to obtain the films (Eagle Surgical Supply, Inc. v. GEICO Insurance Co., 41 Misc 3d 134[A][App Term 1st Dept 2013]), and in any event, FJ Orthopedics’ statement made in its May 21, 2015 letter that the request “is overly burdensome” is evidence of its lack of motivation to satisfy plaintiff’s verification request.

Defendant has failed to raise a material, triable issue of fact; therefore, plaintiff’s summary judgment motion is granted.

The Court correctly held that it is not enough to object to verification.  If the carrier requests the verification from the party who has it, the apt Applicant must at times engage in an effort to procure it.  Had the carrier requested the MRI films from the surgeon,  an objection letter was tendered and the carrier ignored that letter, then it would be a different fact pattern and the surgeon should win that fact pattern.

We shall see if AAA picks up on this distinction or if we are going to continued to be bombarded with the famous line without context from 13 years ago: “[a]n insufficient response requires action by the insurance company to either deny the claim for failure to provide all the requested information or, more appropriately in light of the goals of the No Fault law, to send a follow up verification request, acknowledging the material received and further requesting the omitted material.” All Health Med. Care, P.C. v. Gov’t Employees Ins. Co., 2 Misc. 3d 907, 913 (Civ. Ct. Queens Co. 2004)