Unitrin has created this vacuum where the failure to control ones Assignor has spelled unabated doom to many a medical clinic. Imagine having this conversation during that crazy period when the law was “the failure to attend an IME rebuts the presumption of medical necessity?” and the App. Term 1st Dept did everything in the power to avoid ruling on the merits of these cases?
(The commentator Captain America would probably think that it is unconstitutional to demand an innocent Assignor to be deposed and examined in accordance with the insurance policy upon which she is either the NI or the third-party beneficiary)
Dowd v Praetorian Ins. Co., 2012 NY Slip Op 51160(U)(App. Term 1st Dept. 2012)
“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) and examinations under oath (EUOs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 ; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).”
Martin v Portexit Corp., 2012 NY Slip Op 05088 (1st Dept. 2012)
Interestingly, my view of the law when I handled Rogy v. Mercury became the law in the First Department. Perhaps, this is more of an academic issue in light of the fact that most of these electronic signatures now contain the appropriate language stating that it was placed at the request of the signor.
Here are the highlights:
“State Technology Law § 304(2) provides that “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand” (see Wen Zong Yu v Charles Schwab & Co., Inc., 34 Misc 3d 32 ; People v Johnson, 31 Misc 3d 145[A]; Alpha Capital Anstalt v Qtrax, Inc., 26 Misc 3d 1234[A]). CPLR 2106, which provides for affirmations by attorneys, physicians, osteopaths and dentists does not specifically provide that an electronic signature may not be used and that the signature may only be affixed by hand.
In Naldi v Grunberg (80 AD3d 1,12 , lv denied 16 NY3d 711 ), we held that the Legislature “appear[s] to have chosen to incorporate the substantive terms of E-SIGN [Electronic Signatures in Global and National Commerce Act, 15 USC § 7001 et seq.] into New York state law.” Notably, E-SIGN provides that where a statute requires a signature to be notarized, acknowledged, verified, or made under oath, “that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included . . . is attached to or logically associated with the signature or record” (15 USC § 7001[g]). In Naldi, we concluded that “E-SIGN’S requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper” is New York law. We therefore held that the terms “writing” and “subscribed” in General Obligations Law § 5-703 should be construed to include, respectively, electronic communications and signatures (80 AD3d at 12).
There is no sound reason to treat the term “subscribed” as used in CPLR 2106 any differently than it is used in the statute of frauds. The Second Department’s decision in Vista Surgical Supplies, Inc. v Travelers Ins. Co. (50 AD3d 778 ), upon which the motion court relied in concluding that the doctors’ reports were inadmissible, is unpersuasive, and we decline [*3]to follow it. In that case, the Court held that the reports containing the computerized, affixed or stamped facsimiles of the physician’s signature failed to comply with CPLR 2106 in that there was no indication as to who placed them on the reports, or any indicia that the signatures were authorized (see also Rogy Med. P.C. v Mercury Cas. Co., 23 Misc 3d 132[A]). However, requiring such additional information imports a requirement not contemplated or included in either E-SIGN’s provision for signatures made under oath (see 15 USC § 7001[g]), or State Technology Law § 304(2)[FN1]. Additionally, State Technology Law § 306 provides that in any legal proceeding where the CPLR applies, an electronic record or signature may be admitted into evidence pursuant to article 45 of the CPLR. Based upon the foregoing, we conclude that the electronic signatures complied with CPLR 2106, that the affirmations of defendants’ medical experts were admissible and that the affirmations should have been considered by the motion court.”
New York Methodist v. Country Wide, Sup Ct. Nassau Co. Index #: 3676/11
Nassau has been all over the place on the DJ front regarding the confusion between Westchester/Lincoln and Unitrin. Yet, when the carrier is a defendant, it always seemed that Nassau County Supreme Court would apply Westchester/Lincoln.
Here is a very recent case where that Court found Unitrin to be controlling precedent. The best line of the case is as follows: “[p]laintiff’s simple argument that Defendant failed to prove that the notices were mailed to the assignor or that the assignor failed to appear at any of the scheduled IMEs is without merit.” I would use this language in all civil court opps.
So many people complain that the Pan Chiro line of cases represent a one-way street on the issue of medical necessity . I remembered a case from 6 years ago that represented the same paradigm, “except the shoe being on the other foot”.
I would suggest a review of the below case including now retired Justice Golia’s concurrence below.
For those that do not know, Justice Golia has been replaced by Justice Martin M. Solomon. And for what it is worth, Justice Solomon to the best of my knowledge will be the first judge to serve on any Appellate Court who presided in a Civil Court after the beginning of the no-fault litigation tidal wave that began in 2001-2002.
Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 10 Misc.3d 145(A)(App. Term 2d Dept. 2006)
From the Appellate Term 6 years ago
“In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.”
“In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.
Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven.”
Bajaj v GEICO, 2012 NY Slip Op 51106(U)(Dis. Ct. Nassau Co. 2012)
The first thing someone asks me in Brooklyn is whether “you have a substitute peer doctor”. I shrug my shoulder for the simple reason that either I will have a medical necessity framed issue hearing, or a record that will go to the 15th Floor and be decided in 2015 reversing the order of the Civil Court precluding my doctor, and granting me another day in court. When the case is remanded, that judge will be at Supreme Court, down the block.
I think you know what he case holds based upon the above. I will summarize:
1) Substitute peer may testify.
2) Case from Judge Buggs is considered wrong on constraint of Appellate Term precedent.
3) Original peer does not have to be in evidence for substitute to try case.
4) Acknowledgment that cross-examination of substitute peer doctor may bear more fruit than crossing original doctor, due to the “four corners” rule.
Read the case. Harold Soloman won in the end.
American Transit Ins. Co. v. Cano, 2012 NY Slip Op 31608(U)(Sup. Ct. NY Co. 2012)
A New Jersey Hospital who renders treatment upon an EIP submits bills to the insurance carrier. The bills are overdue. EIP fails to comply with a condition precedent to coverage. Insurance carrier brings a dreaded DJ action against the EIP and all providers who have the right to collect no-fault benefits.
Hospital moves to dismiss based upon the disingenuous argument that there is no jurisdiction. The motion is denied in a nice decision by Justice Tingling. See the link above.
Plf Attorney: Law Office of James F. Sullivan
Def Attorney: Unknown
What would happen if this became law? Read the part about making sure the EIP knows that he has been caught committing fraud and that he should be exercising his 5th Amendment rights at the EUO. Dear Claimant: Here is evidence that you staged your accident. But do not worry, you can assert your 5th Amendment rights at our EUO and if you are evasive for more than 3 hours, then there is nothing we can do. Claimant's like you will help keep our loss ratio over 150%. Thank you for doing business with us. With warm regards, Soon to be defrauded insurance company. STATE OF NEW YORK ________________________________________________________________________ 7357 IN SENATE May 2, 2012 ___________ Introduced by Sen. NOZZOLIO -- read twice and ordered printed, and when printed to be committed to the Committee on Insurance AN ACT to amend the insurance law, in relation to examination under oath of covered persons pursuant to the comprehensive motor vehicle insur- ance reparations act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 5103 of the insurance law is amended by adding a 2 new subsection (i) to read as follows: 3 (i) With regard to any claim for first party benefits pursuant to this 4 article, the examination under oath of a person claiming to be a covered 5 person shall be scheduled by the insurer directly or by an attorney 6 appointed by the insurer for purposes of conducting such examination 7 under oath for whose conduct and activity the insurer shall be directly 8 responsible. The examination under oath of a claimant shall not be 9 demanded unless and until an application for first party benefits has 10 been received by the insurer. In any examination under oath, the claim- 11 ant shall have the right to be represented by counsel. The examination 12 shall be conducted upon oath or affirmation. The examination under oath 13 shall be conducted in the county where the claimant resides or, at the 14 claimant's option, in the office of his or her representative unless the 15 claimant or claimant's representative and the insurer agree otherwise. 16 The day and time that the examination under oath is scheduled shall be 17 agreed upon by the insurer and the claimant or claimant's represen- 18 tative. A demand for an examination under oath shall be in writing and 19 shall be served personally or by registered or certified mail upon the 20 claimant unless the claimant is represented by an attorney, when it 21 shall be served personally or by mail upon his or her attorney. The 22 demand shall state the person before whom the examination is to be held, 23 the time, place and subject matter thereof. Written notice of an exam- 24 ination under oath must be received by the claimant or his or her repre- 25 sentative not less than fourteen days prior to the examination date to 26 be effective to require claimant to appear. The notice shall advise the 27 claimant of the right to video or otherwise record the examination. The EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15461-02-2 S. 7357 2 1 claimant shall be allowed reasonable adjournments which shall be 2 accepted up to no less than twenty-four hours prior to the examination. 3 If the claimant to be examined does not understand the English language, 4 upon reasonable notice to the insurer seeking the examination, the 5 insurer shall, at its own expense, provide a translation of all ques- 6 tions and answers, and may use the services of an interpreter whose 7 compensation shall be paid by the insurer seeking the examination. The 8 examination under oath shall be transcribed before a notary public 9 commissioned to administer oaths in this state. Any examination under 10 oath that is not so transcribed shall not be cited as the basis of any 11 denial of a claim for first party benefits. The transcript of the exam- 12 ination shall not be subject to or available for public inspection, 13 except upon court order upon good cause shown, but shall be furnished to 14 the claimant or his or her representative within sixty days of the exam- 15 ination. The conduct of examinations under oath shall be governed by the 16 Uniform Rules For The Conduct Of Depositions, Part 221 of the Uniform 17 Rules for the New York State Trial Courts. An examination under oath of 18 the claimant may be requested where (1) the insurer suspects fraud 19 perpetrated by the claimant which must be clearly conveyed to the claim- 20 ant or claimant's representative. The insurer shall supply the claimant 21 or claimant's representative with any and all evidence supporting its 22 claim of fraud not less than ten days prior to the examination under 23 oath so as to preserve the claimant's federal fifth amendment right 24 against being compelled to testify against himself or herself; (2) the 25 insurer suspects that the claimant is receiving unnecessary treatment 26 which shall be clearly conveyed to the claimant or claimant's represen- 27 tative. The insurer shall supply the claimant or claimant's represen- 28 tative with any and all evidence supporting its claim that the treatment 29 is unnecessary, including but not limited to, peer reviews not less than 30 ten days prior to the examination under oath; (3) the insurer suspects 31 that the treating provider or facility is billing for treatment that the 32 claimant is not receiving which shall be clearly conveyed to the claim- 33 ant or claimant's representative. The insurer shall provide the claim- 34 ant or claimant's representative with any and all evidence supporting 35 its claim that the billing is not commensurate with the actual treatment 36 received, including but not limited to, the bills submitted by the 37 treating provider not less than ten days prior to the examination under 38 oath; or (4) the insurer has a suspicion that the claim needs to be 39 verified for a reason not enumerated above. The justification must be 40 relevant to the verification of the claim and the reason must be clearly 41 conveyed to the claimant or claimant's representative. The insurer shall 42 provide supporting evidence to support its claim to the claimant or 43 claimant's representative not less than ten days prior to the examina- 44 tion under oath. If the claimant or claimant's representative wishes to 45 contest the request for an examination under oath because claimant or 46 claimant's representative believes the request to be pre-textural or 47 suspects abuse in requesting the examination, he or she shall submit an 48 application to the department for review within five business days of 49 receipt of the written request from the insurer. No insurer shall deny a 50 claim based upon a treating provider's failure to appear at an examina- 51 tion under oath other than bills submitted by such provider, nor shall 52 it form the basis of any liability on the part of any provider or claim- 53 ant for payment previously made relating to the claim in question. If 54 the treating provider fails to appear at an examination under oath, the 55 claimant shall not be held responsible to the provider for services 56 rendered by that provider. When an insurer requires an examination under S. 7357 3 1 oath of a claimant to establish proof of claim, such requirement shall 2 be based on the application of objective standards so that there is 3 specific justification for the use of such examination. Insurer stand- 4 ards shall be available for review by department examiners, as well as 5 by the claimant and his or her representative. The scope of the exam- 6 ination under oath shall be narrowly tailored to the reasons or justi- 7 fication for seeking the examination as set forth in the insurer's writ- 8 ten request. Any question that goes beyond the scope may be objected to 9 and such objected to question shall be submitted by the insurer within 10 seven days of the completion of the scheduled and conducted examination 11 to the department to determine if the objected to question is beyond the 12 scope of the examination. If any question is determined to be beyond the 13 legitimate scope of the examination and its original written justifica- 14 tion for the same, the claimant shall not be required to respond to the 15 question and cannot form the basis of a denial. If the objected to ques- 16 tion is determined by the department to be legitimate and narrowly 17 tailored to meet the objectives contained in the written request for the 18 examination under oath initially given by the insurer when the examina- 19 tion was scheduled, the examination may be rescheduled in the manner set 20 forth above for the limited purpose of receiving responses to the 21 improperly objected to questions, as determined by the department, and 22 responses to other questions that might naturally flow from the claim- 23 ant's responses that are likewise narrowly tailored to investigate the 24 legitimate justification for conducting the examination given in the 25 insurer's original written request, with the same rules for objections 26 applying as set forth above. An insurer shall not deny a claim based 27 upon an objection at an examination under oath unless the insurer 28 completes the above objection appeals procedure, wins said appeal, and 29 the claimant thereafter fails to comply with the demand for a further 30 examination under oath. Each examination under oath shall not exceed 31 three hours from the time the first question is asked until the last 32 question is asked unless reasonable cause exists. For examination 33 constructed with the aid of an interpreter, the time shall not exceed 34 four hours unless reasonable cause exists. The claimant or claimant's 35 representative shall have the right to terminate the examination upon 36 the passage of the above time limits. The claim shall not be denied if 37 the claimant or claimant's representative terminates the examination 38 after the allotted time has expired. Issues of liability related to any 39 ongoing or potential third party action arising from the subject claim 40 may be addressed at the examination under oath. The examination under 41 oath and any investigation related thereto shall be confidential and 42 shall not be subject to discovery or use in any third party action aris- 43 ing out of the incident that serves as the basis of the claim for first 44 party benefits, and shall not be used against the claimant in any such 45 third party action. Absent an admission of fraud by a claimant during 46 the examination under oath, or allegation of fraud perpetrated by the 47 claimant supported by the testimony elicited at the examination, the 48 examination under oath alone shall not form the basis of a denial of 49 first party benefits. Any denial of first party benefits based in part 50 upon an examination under oath, including one based on fraud by the 51 claimant, shall be accompanied by any other written reports, including 52 investigative, that in whole or in part form the basis of the denial. 53 The claimant and his or her representative shall have the right to 54 conduct an examination under oath, upon written request to the insurer, 55 of any individual, including the person or attorney conducting or 56 reviewing the examination, whose reports or opinions form the basis of S. 7357 4 1 any denial of first party benefits based in whole or in part on the 2 examination. Once an insurer has denied further first party benefits to 3 the claimant for any reason, it shall be barred from seeking any further 4 verification of the claim including, but not limited to, conducting 5 medical examinations and/or further examinations under oath. The denial 6 of a claim for failure to attend an examination under oath shall not be 7 retroactive to the date of the claim, but shall only result in the 8 denial of all benefits received after the date of the examination under 9 oath.
CPT CODE 99455 and 99456. The MOST abused CPT Codes that are billed. Of course, leave it to someone who bills for MUA and does not believe in the 68.4% and 16% reduction to bill like this. See, Flatbush Chiropractic, P.C. v Metlife Auto & Home, 35 Misc.3d 1203(A)(Civ. Ct. Kings Co. 2012)
Below is the arb award:
I thank a friend at Liberty Mutual for informing me of this:
New York No-Fault Arbitration Tribunal:
In the Matter of the Arbitration between:
Bronx Chiropractic Services, PC / Precious Cooper (Applicant)
- and -
Liberty Mutual Insurance Company (Respondent)
AAA Case No. 412010065292; AAA Assessment No. 17 991 08906 11
I, Carolynn Terrell-Nieves, Esq., the undersigned arbitrator, designated by the American Arbitration Association pursuant to the Rules for New York State No-Fault
Arbitration, adopted pursuant to regulations promulgated by the Superintendent of Insurance, having been duly sworn, and having heard the proofs and allegations of the parties make the following AWARD:
Injured Person(s) hereinafter referred to as:
Claimant 1. Hearing(s) held on
and declared closed by the arbitrator on 5/11/11.
Marc Schwartz, Esq., for Gene Sigalov, Esq., participated in person for the Applicant. Robert Trestman, Esq., participated in person for the Respondent.
2. The amount claimed in the Arbitration Request, $350.00, was NOT AMENDED at the oral hearing. STIPULATIONS were not made by the parties regarding the issues to be determined.
3. Summary of Issues in Dispute
Whether the Applicant is entitled to a reimbursement of its claim?
4. Findings, Conclusions, and Basis Therefor
Applicant seeks payment in the amount of $350.00 for a chiropractic examination it performed on the Assignor on June 24, 2010. The Respondent timely denied the claim based
on its contention that the CPT code billed by the Applicant, 99456, is a By Report code without an assigned RVU. Further, as per the fee schedule rules, documentation must be
submitted supporting the provider’s charges. In addition, the Respondent argued that the fee charged far exceeds those of any chiropractic evaluation and management service.
The documents contained in the ECF were reviewed prior to/at the time of the hearing.
In support of its claim the Applicant has submitted a medical record memorializing the chiropractic examination in dispute. Of note, said examination was performed by Dr. Robert Super on June 24, 2010. In addition, the Applicant has submitted an Affidavit by Dr. Super concerning his examination of the Assignor and the amount billed for said service.
In support of its contentions, the Respondent has submitted its Explanation of Benefits for the claim in dispute and two pages from the Workers Compensation Fee Schedule. Based on the documents submitted and the arguments of counsel, I find in favor of the Applicant and award it $54.74 for the chiropractic examination performed on the Assignor on
June 24, 2010.
After reviewing the documents submitted and numerous arbitration decisions concerning this particular issue, I must agree with the Respondent’s contention that the amount billed by the Applicant for the chiropractic examination in dispute was excessive. As to Dr. Super’s Affidavit, initially I note that said document discusses the examination he performed on the Assignor, that he reviewed the Assignor’s medical records prior to/after the examination and why his examination was billed under CPT code 99456.
In Dr. Super’s Affidavit, Dr. Super noted that examinations such as the one in dispute “typically” consist of a thirty five to forty five minute face to face consultation and a
thirty to forty minute review of records. However, what Dr. Super “typically” does with other patients does not specifically state what he did with the Assignor in this matter. I also note that when Dr. Super quoted the Fee Schedule as to the components of a 99456 examination,
he failed to note that said examination, according to the Fee Schedule, is for a work related or medical disability examination. However, there has been no evidence submitted by the Applicant that the examination in dispute was work related or a medical disability examination. I also note that in his Affidavit, Dr. Super noted that the examination of June 24, 2010 was performed to see if the Assignor was a candidate for Manipulation under Anesthesia. However, the Applicant has failed to submit any documentary evidence which
demonstrates that a patient being considered for Manipulation under Anesthesia is required to have a work related or medical disability examination before said procedure is performed. Notably, most disturbing regarding this Affidavit is that it is clearly boiler plate and used in every case before me submitted by this Applicant. Within the Affidavit, Dr. Super references the patient as a (he) when the patient is clearly a (she). Perhaps he is confusing the patient, but how am I to know. I further have had the pleasure of Dr. Super testifying before me and in that instance, he described exactly why and how such an exam was performed and the rationale as to why the exam was so detailed and exactly what he had to do with the patient that he specifically treated. This Affidavit clearly lacks the establishment of medical necessity for the treatment of the claimant in issue, nor does the Affidavit meet the credibility issue as well.
Although Dr. Super in his Affidavit contended that the examination he performed on the Assignor on June 24, 2010 was more comprehensive than an initial chiropractic examination, I still am not persuaded that the examination of June 24, 2010 is correctly billed under 99456. To wit, I have reviewed hundreds of No-Fault cases over the last several years and can’t recall a physician, even a specialist like an orthopedic surgeon who was examining a patient for a possible surgical intervention, who billed anything close to $350.00 for his/her examination of the patient. As such, and because CPT code 99456 specifically states that the examination to be performed is a work related or medical disability examination, I find that the examination performed by Dr. Super on June 24, 2010 should be reimbursed under CPT code 99203 which is the CPT code for an initial examination by a chiropractor. Therefore, the Applicant is entitled to a reimbursement in the amount of $54.74 for the examination o June 24, 2010.
Based on the aforestated, the Applicant is awarded $54.74 and the balance of its claim is denied. This award is in full disposition of all No-Fault benefit claims submitted to this Arbitrator.
Back to Back Chiropractor, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 51088(U)(Dis. Ct. Suffolk Co. 2012)
This opinion is interesting and worth reading because it addresses a few issues that are going to have to be tackled at some point by an appellate court. They form the bane of many lower arbitrators’ decisions.
1) “Nonetheless, defendant’s request for the production of documents and information seven days prior to the EUO is troubling to the Court. The request, as plaintiff contends, is clearly outside the scope of permissible information. Lower Courts have found this type of EUO request for documents and information to be “palpably improper”.
The Court addresses the discoverability of tax returns. I think corporate tax returns are openly discoverable during verification.
Despite the above: “However it is the plaintiff’s reaction to the “palpably improper” document demand of defendant’s EUO request that vitiates its causes of action. Here, the plaintiff did nothing and did not contact the defendant’s counsel to protest the document request. There is no provision in the no-fault regulations which permit a claimant or an insurance company to ignore communications from each other “without risking its chance to prevail in the matter”
2) The plaintiff’s assignee also did not show up at either date for the EUO’s. Again, there was no protest of the fact that the EUO’s were scheduled at the inconvenient location of Poughkeepsie, New York, a few hours upstate from plaintiff’s office in Nassau County. Nor did the plaintiff request reimbursement for time and travel expenses “thereby preserving its defenses concerning the EUO notices”
I think the Court is correct: show up to the EUO and send a bill for your time and mileage. Deal with the other issues after you show up.