Key Takeaway
Court rules CPT code book and CPT Assistant are admissible in NY no-fault insurance fee disputes, reversing arbitrator's exclusion of coding guidance materials.
Matter of Global Liberty Ins. Co. v McMahon, 2019 NY Slip Op 03692 (1st Dept. 2019)
This appears to be a very large issue in modern NY no-fault jurisprudence, as the coding of billings becomes the main issue in many arbitration. I was only zapped by this issue once, but once is enough. Despite the clear wording of the regulation and the Fee Schedule, I knew I was going to be at the First Department on this case.
Here is the substance of the case:
“The lower arbitrator, in rendering an award to respondent in that amount, refused to consider CPT Assistant, on which Global had relied, based on the arbitrator’s view that CPT Assistant was “not authorized by statute or regulation applicable to the No-Fault Law.” On Global’s appeal, the master arbitrator affirmed the lower arbitrator’s award. Thereafter, Supreme Court denied Global’s petition to vacate the award. On Global’s appeal, we reverse and grant the petition.
The Official New York Workers’ Compensation Medical Fee Schedule, promulgated by the chair of the Workers’ Compensation Board, directs users to “refer to the CPT book for an explanation of coding rules and regulations not listed in this schedule.” The CPT book, in turn, expressly makes reference to CPT Assistant. By both statute and regulation, the fee schedules established by the chair of the Workers’ Compensation Board are expressly made applicable to claims under the No-Fault Law (see Insurance Law § 5108; 11 NYCRR 68.0, 68.1; see generally Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63-64 , affd 27 NY3d 22 ). Accordingly, because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers’ Compensation Medical Fee Schedule applicable to this claim under the No-Fault Law, the award rendered without consideration of CPT Assistant [*2]is incorrect as a matter of law (see 11 NYCRR 65-4.10) “
To me, the rule that I cannot reference the CPT Code book or the CPT Assistant was meritless. Apparently, this was another “Maslow rule” that a sizable minority of arbitrators held as gospel. You could find out who the arbitrator and master arbitrator was in this case as it is e-filed.
My angst here is not so much with the lower arbitrator as (s)he had a body of “law” to rely upon in coming to his/her decision. Why the arbitrators are so moved by Maslow rules of regulatory interpretation is a question I may never get an answer to (this is the second Maslow rule the Appellate Division reverse d- no easy feat), but I can live with the underlying lower arbitrator’s decision.
My problem here is with the master arbitration program. For starters, if you move from New York, you should not be a master arbitrator. Aren’t there plenty of New York attorneys with coverage backgrounds who can review arbitrator decisions? Second, if you find that Petrofsky blocks you from making legal determinations (or disguising factual issues and legal issues), then you should be appearing on traffic tickets and not as a master arbitrator. Third, if you require me to prove the merits of my case by clear and convincing evidence (I will not call out this master arbitrator) because you have not followed the recent Article 75 cases in the First and Second Department, you also should not be a master arbitrator. I master a lot of cases and the awards I read are absolutely horrible. Honestly, they should allow us to go directly to Court as we do on UM cases. Having to write a $325 check is the expression of putting good money after bad money.
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- Understanding medical billing and down-coding requirements in no-fault claims
- Fee schedule defense requirements and competent evidence standards
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- Civil Court JHO authority in no-fault fee schedule disputes
- New York No-Fault Insurance Law Practice Area
Legal Update (February 2026): Since this 2019 decision, the New York Workers’ Compensation Medical Fee Schedule and related coding guidance referenced in 11 NYCRR 65-4 may have undergone revisions that could affect the admissibility standards for CPT Assistant and other coding resources. Additionally, subsequent appellate decisions may have further clarified or modified the evidentiary standards established in Global Liberty. Practitioners should verify current fee schedule provisions and recent case law developments regarding the use of CPT coding materials in no-fault arbitrations.
