Key Takeaway
Westcan upheld a provider's MUA trial win in 2018. Read the competing testimony, credibility review and limits of this record-specific necessity ruling.
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 provider won this MUA trial. Westcan Chiropractic v Elco Administrative Services, decided June 28, 2018, is the opinion behind the previously uncited witness excerpts in this July 2018 note. The Appellate Term affirmed the judgment after a nonjury trial limited to three manipulation-under-anesthesia treatments.
The insurer’s chiropractor considered the procedures premature after ten weeks of conventional chiropractic care. The provider’s examining chiropractor described only minimal improvement with conservative care and improvement after the MUA treatments.
Why the judgment stood
The trial judge credited the provider’s testimony. The Appellate Term deferred to credibility findings supported by the record and saw no reason to disturb the award.
The opinion also recounts testimony distinguishing a second opinion about anesthesia from one about the manipulation. That is the evidence discussed in this case, not a general declaration that second opinions are unnecessary or that MUA is always appropriate after ten weeks.
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Jason wanted a closer look at the records and outcome assessments. The opinion does not establish a clinical protocol, a reimbursement rate or a requirement to conduct an EUO. Its result contrasts with Rosenzweig, where an inadequate affidavit lost at summary judgment before any trial.
Jason’s original comment
Jason’s July 2018 comments below concern his reaction to the record. The fee-schedule reference is historical; his observations about Dr. Cerf, testing and EUOs are not findings or requirements announced in Westcan.
The new fee schedule notwithstanding, the question here is whether MUA treatments were necessary. You saw part of the typical play by play in the MUA world.
What I always find helpful with the MUA cases are the MRI findings, EMG findings and Dr. Cerf is quite emphatic on data reliability and use of the outcome assessment test in formulating a treatment plan. The question here and perhaps the linchpin is what are “minimal improvements” and were some of the other treatment notes looked at?
The other thing that is unfortunate is that examinations prior and post MUA to determine whether an examination was done often do not occur. This would require an EUO to discern of course. This case, at best, looked a prototypical battle of the experts and plaintiff won. Absent some record gaffe, the order would invariably affirmed.
Historical note: Westcan’s June 2018 decision affirmed credibility findings on three MUA treatments. It did not set present-day treatment guidelines, second-opinion requirements or fee-schedule rates. Last reviewed: September 2026.
Connect to the Encyclopedia
- Medical necessity: opinions, claim timing and related cases
- An affidavit that did not answer the peer review: Rosenzweig
- Independent expert testimony supported dismissal: All Borough
- Excluding a substitute expert led to a new trial: Radiology Today (2011)
- Substitute testimony and a separate concurrence: Park Slope
For review of a particular denial or litigation record, contact the firm or see the no-fault defense practice.
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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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.
