Civil Court of the City of New York, Kings County

CV-100846/2006

Attorney for Plaintiff:

Stefan Belinfanti

Gary Tsirelman, P.C.

65 Jay Street, 3rd Floor

Brooklyn, NY 11201

Attorney for Defendant:

Dominick Dale

Korshin & Weldon, Esqs.

170 Froehlich Farm Boulevard

Woodbury, New York 11797

Ingrid Joseph, J.

Plaintiff AR Medical Rehabilitation, P.C. (referred to interchangeably as “plaintiff” or “AR Medical Rehabilitation”) initiated this action against defendant Geico General Ins. Co. (“defendant”) to recover assigned first party no fault benefits for services provided to assignors Celeste Russell, Robin Williams, and Edwina McDonald. This court conducted a bench trial on January 14, 2013, wherein the parties were represented by counsel.

Prior to commencement of the trial the defendant made an oral motion in limine to preclude Alexander Rozenberg, M.D. (“Dr. Rozenberg”) from testifying and to dismiss the case based upon its contention that the instant action raises Mallela issues pursuant to State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]. The defendant claimed Dr. Rozenberg conspired with two individuals, Inna Polack and Alexander Polack (collectively, the “Polacks”), to fraudulently incorporate multiple medical professional service corporations, including AR Medical Rehabilitation. The defendant indicated that Dr. Rozenberg operated as the straw man for the illegal companies but the Polacks, who are lay persons and unauthorized to collect no fault benefits under New York law, actually owned the businesses. The defendant posited that there were prior rulings [*2]from different court proceedings that when taken together support its position.

The defendant presented the court and plaintiff’s counsel with two decisions that were rendered at various stages of a RICO (Racketeer and Influenced Corrupt Organizations Act) action, wherein Allstate Insurance Company sued the Polacks, Dr. Rozenberg, two other individuals, three medical management companies (Mighty Management Group Inc., Mighty Management LLC, and Blue Wave Management), the plaintiff in this action, AR Medical Rehabilitation, and two other professional medical companies (AR Medical Art, P.C. and Yonkers Medical Art, P.C.). The documents submitted consisted of a decision rendered by United States District Court Judge Arthur Spatt (“Judge Spatt”) (Allstate Insurance Company v Rozenberg, 590 F Supp 2d 384 [ED NY 2008]) and a Report and Recommendation prepared by Magistrate Judge Boyle (“Magistrate Boyle”) (Allstate Insurance Company v Polack, 2012 WL 4489282 [ED NY 2012]) (collectively, “RICO action”) (defendant’s exhibits A and B, respectively). The defendant also submitted two decisions from the Supreme Court, Kings County, Criminal Term (People v Rozenberg, 21 Misc 3d 235, 862 NYS2d 895 [Sup Ct, Kings County 2008] and People v Rozenberg, Sup Ct, Kings County, April 24, 2009, McKay, J., Indictment No. 5545-06) as well as the Determination and Order from a hearing conducted by the State of New York Department of Health Board for Professional Medical Conduct (Matter of Alexander Rozenberg, BPMC No.10-271, December 17, 2010) (defendant’s exhibits C-E, respectively). The defendant indicated that each proceeding evinced the same operative fact pattern of insurance fraud involving Dr. Rozenberg and AR Medical Rehabilitation.

Plaintiff’s attorney countered that the cases were not dispositive on the issue of whether AR Medical Rehabilitation can pursue no fault benefits in a civil action, because none of the cases resulted in a determination that the company is a Mallela corporation. Plaintiff also argued that Judge Spatt’s 2008 decision should not be considered with respect to the in limine issue since that decision addressed only whether certain causes of action should be dismissed. Additionally, plaintiff pointed out that Magistrate Boyle’s report and recommendation was not binding, because there was no proof that it had been adopted by Judge Spatt.

The defendant, with the plaintiff’s consent and the court’s permission, was given an extension of time to produce Judge Spatt’s decision adopting the recommendations of Magistrate Boyle. On the day of trial, the court reserved decision on the in limine issue and permitted plaintiff to call Dr. Rozenberg as a witness with the understanding that such testimony would be stricken and a verdict rendered in favor of the defendant if the court later determined, based on the documents submitted, that in limine relief is warranted. Subsequently, on January 19, 2013, the defendant submitted a third case (Allstate Insurance Company v Polack, US Dist Ct, SD NY, 08-CV-565, Spatt, J., 2012) from the RICO action.

The court is being asked to determine whether the defendant’s motion in limine should be granted, or, if in limine relief is not warranted, whether the plaintiff met its prima facie case of entitlement to no fault benefits at trial?

After carefully reviewing the documents submitted, the court finds that the defendant has failed to demonstrate entitlement to the relief sought in its in limine application. While the decisions submitted are replete with discussion about an alleged conspiracy to defraud New York’s No Fault regime, they are devoid of any finding that Dr. Rozenberg was a participant, or that AR Medical Rehabilitation was the fruit of a fraudulent scheme. Judge Spatt’s 2008 decision addresses two motions to dismiss for failure to state a cause of action that were made by Dr. Rozenberg and other defendants in that case. Judge Spatt discussed the allegations contained in Allstate’s complaint but did not reach a conclusion as to whether AR Medical Rehabilitation was an illegally formed [*3]company, nor did he render a decision concerning Dr. Rozenberg’s involvement in the alleged illegal activity. Thus, there are no findings of fact or even an adverse inference that can be drawn from that decision that would have a binding effect on Dr. Rozenberg or the plaintiff in this case.

The defendant’s reliance on Magistrate Boyle’s report and recommendation and Judge Spatt’s 2012 decision adopting that report is misplaced. Allstate moved for default judgment in the RICO action against some of the defendants, and Judge Spatt referred the matter to Magistrate Boyle to report and recommend a decision on the motion. Magistrate Boyle referenced Dr. Rozenberg and AR Medical Rehabilitation in his analysis but stated clearly at the outset of the report, that Allstate voluntarily dismissed the action against Dr. Rozenberg and AR Medical Rehabilitation (Allstate Insurance Company v Polack, 2012 WL 4489282 [ED NY 2012]). Consequently, there were no recommendations that would have an effect on any of the issues central to this trial, because neither Magistrate Boyle in his report, nor Judge Spatt in his order adopting that report (Allstate Insurance Company v Polack, US Dist Ct, SD NY, 08 Civ 565, Spatt, J., 2012) addressed the issue of Dr. Rozenberg or the corporate structure of AR Medical Rehabilitation on the merits.

Additionally, the criminal case and Determination and Order of the State Board for Professional Medical Conduct (“BPMC”) run counter to the defendant’s argument. In the criminal matter Dr. Rozenberg was indicted on multiple counts of falsifying business records and insurance fraud but convicted only of certain charges that pertain to an assignor not named in the instant action (see People v Rozenberg, 21 Misc 3d 235, 862 NYS2d 895 [Sup Ct, Kings County 2008] and People v Rozenberg, Sup Ct, Kings County, April 24, 2009, McKay, J., Indictment No. 5545-06). In this case, the doctor testified, on direct examination, that he had been indicted on several criminal charges but stated that fifty-six (56) of the charges resulted in either a dismissal or acquittal. Dr. Rozenberg admitted that he was convicted on one count of falsifying business records and one count of insurance fraud but explained that the convictions concerned a specific patient whose “initial evaluation” had been coded and erroneously billed as a “consultation” (tr. 16-19). Dr. Rozenberg indicated that there is a $25.00 difference between the two codes and that he was found guilty of falsifying that specific business record. Subsequently, by order dated December 17, 2010, the Board for Professional Medical Conduct determined that revocation of the doctor’s license to practice medicine was the appropriate penalty for committing the aforementioned crimes. The court finds that while Dr. Rozenberg’s convictions and license revocation may have some bearing on his credibility, they do not affect his ability to testify as a prima facie witness.

The court has discussed the defendant’s substantive arguments and will now address the procedural issues attendant to this matter. Despite the defendant’s characterization of the motion as one for in limine relief, the court finds that the application amounts to a motion for summary judgment. Essentially, the defendant alleged that there were no issues of fact based upon its contention that AR Medical Rehabilitation is a Mallela corporation and its true owners, the Polacks, are unauthorized to collect no fault benefits under New York law. The underlying policy of requiring that a summary judgment motion be made within a certain period of time is to prevent the practice of delaying such motions until the eve of trial (Pallotta v Saltru Associates Joint Venture, NY, 32 Misc 3d 1208(A) [Sup Ct, Kings County 2011] citing Miceli v State Farm Mutual Automobile Ins. Co., 3 NY3d 725, 726 [2004]). For that reason, inter alia, the Appellate Division Second Department has held that a motion in limine is an inappropriate substitute for a motion for summary judgment (In re Singer, 99 AD3d 802, 803 [2d Dept 2012]; Brewi-Bijoux v City of New York, 73 AD3d 1112, 1113 [2d Dept 2010] quoting Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811 [2d Dept 2003]). Furthermore, an in limine motion is generally made [*4]within the context of a jury trial to protect against the prejudice that could result if a jury hears inadmissible, irrelevant, or inflammatory evidence (Matter of PCK Dev. Co., LLC v Assessor of Town of Ulster, 43 AD3d 539 [3d Dept 2007], and State of New York v Metz, 241 AD2d 192, 198 [1st Dept 1998]; Caster v Increda-Meal, Inc., 238 AD2d 917, 918 [4th Dept 1997], see also 4 NY Prac., Com. Litig. in New York State Courts § 38:1-8 [3d Ed.]). In a bench trial, as is the case here, there is little use for that safeguard because the trier of fact would be exposed to the objectionable evidence whether such evidence is couched in an application for in limine relief or presented via documentary or testimonial evidence at trial. Indeed, the Court of Appeals has held that a Judge is uniquely capable of distinguishing the issues and making an objective determination based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making decisions (People v Moreno, 70 NY2d 403, 406 [1987]).

Based upon the preceding analyses, the defendant’s motion in limine is denied.

The court will now address whether the plaintiff proffered sufficient evidence to meet its prima facie burden. Under New York No Fault law, a plaintiff establishes its prima facie case by demonstrating that it submitted a claim form to the defendant insurer, tendering proof of the fact and amount of the loss sustained, and that payment of no-fault benefits is overdue (Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). It is well settled that the plaintiff provider must call a witness at trial that can lay the proper foundation for admission of its claim forms into evidence under the business record exception to the hearsay rule (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 664 [2d Dept 2008]; Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud. Dists 2007]).

The court finds that Dr. Rozenberg’s testimony was insufficient to lay the foundation necessary to establish that plaintiff’s billing documents are business records. Dr. Rozenberg indicated that although Kevi Management Company (“Kevi”) was located in the same building, it was a separate entity that handled all of the collection and billing tasks for AR Medical Rehabilitation (71, 81-82). Dr. Rozenberg stated that Kevi employees generated the bills and that he would sign or stamp them, but the witness failed to adequately describe the procedure that Kevi employees followed when creating bills (tr 25-26, 71). The doctor testified that after receiving the signed or stamped bill, a Kevi employee (1) inserted bills in an envelope, (2) placed the envelopes in a plastic bag, (3) delivered the entire package to the post office for mailing, then (4) recorded the mailing of each bill in a notebook that was kept in the office (tr 24, 28).

Additionally, the doctor’s testimony was laden with inconsistencies. Dr. Rozenberg initially stated that he and the owner of the Kevi Company established the billing procedures together, but he later admitted on cross-examination that he provided no input on the process (tr 72-73). The doctor testified that he personally checked claim forms for accuracy before signing or stamping them, and he averred that there were no deviations from that practice (tr 20, 33). However, on voir dire, the witness conceded that there were exceptions to that rule when presented with a bill that was neither signed nor stamped by him (tr at 68). Dr. Rozenberg attempted to mitigate the discrepant testimony by explaining that he signed or stamped only the bills generated from services he provided and the chiropractor, physical therapist, acupuncturist, and orthopedic surgeon were responsible for signing or stamping their own bills (tr 69, 74-75). Dr. Rozenberg acknowledged that he did not check the other specialists’ bills and even answered in the affirmative when asked whether he was only concerned about his own bills (tr at 74). The doctor testified that he supervised the billing process but later acknowledged that the Kevi Company employed its own supervisors (tr at 35). At one point, Dr. Rozenberg even delineated his umbrella of responsibility from that of the billers by stating [*5]that he was responsible for ensuring the bills were correct, while Kevi employees were responsible for mailing the bills within the requisite period of time (tr at 82).

Based upon the inconsistencies and gaps in Dr. Rozenberg’s testimony and the plaintiff’s failure to produce a witness from the Kevi Company, the court finds that plaintiff failed to lay the proper foundation for admission of the documents in evidence under the business record exception to the hearsay rule (see CPLR 4518[a]; compare Art of Healing Medicine, P.C. v Travelers Home and Marine Ins. Co., 55 AD3d 644 [2d Dept 2008] and Viviane Etienne Medical Care, P.C., 31 Misc 3d 21 [2d 11 13 Jud Dists 2011] with Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 [2d Dept 2010]. Consequently, the court hereby rescinds its decision to admit plaintiff’s bills into evidence as business records on the day of trial.

Even if the documents were allowed in evidence, they would be accorded little, if any, weight, because plaintiff failed to proffer sufficient evidence to demonstrate that Dr. Rozenberg actually checked the bills for accuracy. The claim forms at issue in this case contain charges for services that run the gamut, including office visits, supplies, therapeutic exercises, and range of motion tests. Dr. Rozenberg did not testify that he provided those services, and there is conflicting testimony as to whether he supervised, signed, stamped, or checked the accuracy of bills from services rendered by other professionals in the office.

Accordingly, the court awards a verdict in favor of the defendant.

This constitutes the Decision and Order of the court.

March 27, 2013_____________________________

HON. INGRID JOSEPH

Acting Supreme Court Justice

Civil Court of the City of New York, Richmond County

6352/11

Law Office of Jennifer M. Cassandra (plaintiff)

24 Shepard Avenue

Staten Island, NY 10314

Law Office of Teresa M. Spina (defendant)

170 Froehlich Farm Boulevard

Woodbury, NY 11747

Philip S. Straniere, J.

Do something special

Anything special

And you’ll get better because

You gotta get gimmick

If you want to get applause.^[FN1]

[*2]Plaintiff, Forest Rehabilitation Medicine PC (Forest) assignee of John Russo (Russo), commenced this action against the defendant, GEICO Insurance Company (GEICO), alleging that the defendant failed to pay for first party medical benefit services rendered to Russo as required by the New York State No-Fault Insurance Law [Article 51 New York State Insurance Law]. A trial was held on January 29, 2013. Both sides were represented by counsel.

The parties stipulated that the plaintiff had timely submitted the billings in question and that the defendant had timely denied payment based on “lack of medical necessity.” The services in question are high frequency pulsed electromagnetic stimulation treatments performed by plaintiff using a TMR 1200 machine manufactured by Scientific Imaginetics. TMR stands for “therapeutic magnetic resonance” and is a method of providing high frequency electromagnetic stimulation on patients in order to facilitate pain relief. As explained by plaintiff’s witness, John D’Angelo, MD, the process has nothing to do with MRI’s-magnetic resonance imaging.

Plaintiff bills $800.00 for each of these TMR treatments and recommends for most patients a series of four to five treatment sessions with a maximum of ten to twelve sessions. Plaintiff is seeking to be paid $4,000.00 for five treatments given to Russo on December 8, 10, 13, 15, & 17, 2010.

The treatments were submitted to GEICO under Code 64999 which is used for an “unlisted neurological procedure.” Apparently if plaintiff had submitted the treatments under a standard recognized electro-stimulation code, plaintiff would have been paid. However, under the standard code carriers are required to make payment at a rate substantially less than that for Code 64999.

Plaintiff apparently taking a cue from Miss Mazeppa, Electra & Tessie Tura of “Gypsy” fame who sang the above cited lyrics, has found “something special” in using the TMR 1200, a relatively unique pain management modality for the treatment of pain by the use of high frequency electromagnetically produced waves. Plaintiff testified that there are only about fifty such machines in use in the United States and the TMR 1200 device costs about $150,000.00. Although there are other similar devices available, plaintiff is using the [*3]TMR 1200 which is manufactured by Scientific Imaginetics.^[FN2]

When first confronted with the name of the machine the court pondered if a TMR 1200 was either a type of racing car, an alumni group from Ten Mile River Scout Camp, or the machine Marvin the Martian used to try to eliminate the Earth from blocking his view of Venus.^[FN3] Plaintiff quickly dispelled any of these misconceptions and while testifying on rebuttal described the science of the machine and how it was designed to be part of a comprehensive pain management program.

Defendant’s denial of the claim was based on a “Peer Review” conducted by Edward Weiland, MD, on January 11, 2011 in which Weiland concluded that the clinical status of Russo did not warrant “multiple therapeutic magnetic resonance high frequency electromagnetic post therapy treatments” and that the procedure “would not have accelerated claimant’s clinical recovery” from an accident on October 22, 2010.

On the trial date, Dr. Weiland was unavailable to testify and the defendant called Mitchell Weisman, MD as its “re-peer doctor” and expert witness testifying as to the lack of the medical necessity of the procedures rendered by plaintiff after having reviewed the same records as Weiland as well as Weiland’s report. It was stipulated that Weisman was an expert in the area of physical medicine and rehabilitation and that he could testify as the “Re-Peer Review” doctor.

Weisman agreed with Weiland’s conclusion that the procedure was not medically necessary. However, as an expert witness, Weisman opined that “TMR” and similar procedures are not generally accepted in the medical community as a valid treatment option. He stated that the normal electrical stimulation used in physical therapy is all that [*4]is required and that TMR and other high frequency based modalities are neither needed nor has it been established that they provide any benefit.

There are a few problems with defendant’s case. First, no where in his peer review does Weiland state that the TMR procedures were “not medically necessary.” He concludes that “medical justification has not been established.” The standard to be applied is lack of “medical necessity,” the term”medical justification” is not necessarily the same thing and does not meet the statutory/regulatory standard for evaluating the appropriateness of a treatment.

Second, although he recites the American Medical Association definition of “medical necessity” he fails to apply that definition to the specific facts of this claim.

Third, unlike Weisman who testified that TMR is not accepted in the medical community as a form of treatment, Weiland never addresses that issue, and implies that had there been some other documentation presented to him to review, he might have concluded that the procedures were necessary and that TMR is an appropriate treatment. Weiland justified his conclusion on the fact that there was no clinical basis for these treatments and that the customary modalities used in physical therapy should be sufficient to treat Russo.

The conclusions expressed by Weisman at trial cannot be accepted as they are beyond the scope of the Weiland Peer Review. Because Weiland never specifically found a “lack of medical necessity,” Weisman cannot amend that peer review to reach the conclusion that lack of medical necessity is the appropriate finding and thereby correct the deficiencies in the initial peer review report to which plaintiff was expected to respond at the trial..

Further, Weisman based his conclusion primarily on his assertion that TMR and similar treatments are not accepted in the medical community. It seems his opinion was secondarily, if at all, based on a lack of clinical findings to necessitate such treatments. Therefore, Weisman failed to reach his conclusion based on the same criteria used by Weiland. Weisman was in effect raising a new and different reason for denying payment, that is, the plaintiff’s seeking payment for a procedure not accepted in the medical community for the purpose used by the plaintiff. In general, plaintiffs are required only to rebut in litigation the grounds set forth in the denial by the carrier and not be surprised at trial by new grounds for rejecting payment of a claim.

The above being said these facts do create the interesting issue of whether the court can deny coverage and dismiss plaintiff’s cause of action based on the reasoning stated by the defendant’s expert at trial when the expert is testifying as to matters not used by the defendant to initially decline paying the claim. Weisman was qualified as an expert witness in the area of physical medicine and rehabilitation. The function of an “expert” is to provide the trier of fact with information that would be beyond the knowledge of the general public. Applying this standard, it would seem that the court could accept the [*5]expert’s testimony as to whether TMR is an accepted treatment protocol recognized in the medical community, especially when the expert is subject to cross-examination by plaintiff’s counsel; the plaintiff was present in court for the expert’s testimony; was called as a rebuttal witness and given the opportunity to challenge the conclusions of defendant’s expert.

What is also causing the court to question the appropriateness of the TMR 1200 electromagnetic therapy procedure is the apparent lack of any studies to show that the high frequency pulsed electromagnetic stimulation has any benefit to a patient such as Russo or that it is accepted in the medical community. The fact that plaintiff testified that there are only fifty machines in the United States would tend to support a conclusion either that the therapy is a new and emerging one as postulated by plaintiff and that he is on the cutting edge and ahead of the community curve, or that it is not accepted in the medical community and considered experimental at best, as advocated by the defendant.

The website of Scientific Imaginetics, the manufacturer of the TMR 1200 warns that “TMR is intended for temporary symptomatic relief of chronic intractable pain”it goes on to list as one of its nine “Warnings” that “the TMR has no proven curative value.” In the area “Contraindications” the manufacturer warns, “Never use the device when pain syndromes are undiagnosed until the etiology is established.” This contraindication is of particular interest because other than X-rays, taken in the emergency room on the date of the accident, there appears to have been no diagnostic or objective tests conducted on Russo so as to determine the cause of his pain. Linking it to a car accident, does not necessarily mean the etiology has been established.

In fact, Johns Hopkins Medicine/Johns Hopkins Healthcare in a report dated 3/15/12 instituted a policy that “High Frequency Pulsed Electromagnetic Stimulation (also known as therapeutic magnetic resonance)’ would not be authorized for “Treatment of soft tissue injuries.” A similar conclusion was reached by Aetna in a report dated 4/27/12. Although both of these reports are generated by insurance companies, no report contradicting these findings was produced by plaintiff^[FN4].

In order for a medical device such as the TMR 1200 to be “approved” for use by the Food and Drug Administration(FDA) the plaintiff must establish that:

there exists valid scientific evidence…which is sufficient to determine the

effectiveness of a device and from which it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to have under the conditions of use prescribed, recommended or suggested in labeling the device [21 USCA §360c(a)(3)(B)(I)(ii)].

The FDA requires the person seeking approval of the device to provide adequate, well-controlled investigations which includes clinical investigations by qualified experts [*6]possessing scientific training and experience who could conclude that the device will have the effect it purports to have when used as directed [21 USCA §355(d)]. A device can be denied approval if the studies were not designed well, not quantifiable, and not otherwise conducted under applicable and essential principles of adequate, well-controlled clinical investigations [United States v An Article of Device…Diapulse, 768 F2d 826, 831 (1985)].

Plaintiff herein has failed to establish that the TMR 1200 is in fact FDA approved nor has plaintiff provided any independent studies to establish that this treatment modality is accepted in the medical community for the purposes for which plaintiff is using the device.However, the mere fact that the FDA has approved a device or procedure does not mean that the process is covered by insurance or Medicare [Svidler v US Dept of Health & Human Services, 2004 WL 2005781; Diapulse Corporation of America v Sebelius, 2010 WL 1037250 (EDNY)].

A similar issue as is presented in this litigation was before the United States District Court, Eastern District of New York, regarding whether the use of a device manufactured by Diapulse for treatment of persons by electromagnetic therapy would be covered under Medicare Part B [Diapulse Corporation of America v Sebelius, supra]. In regard to Medicare payments, the current status of such reimbursement requests is to be determined on a case by case basis. Medicare will not cover the electromagnetic therapy device but will cover the service provided by a physician or other medical clinician, thereby not allowing at home treatment. In this no-fault case the issue is not reimbursement for an “at home” device, it is for a physician provided service in the physicians office, which if a Medicare claim might be considered for payment.

For a service or a device to be covered by Medicare, it must be not only be safe, but also must be demonstrated as effective and generally accepted in the medical community, and an appropriate treatment [Estate of Aitken v Shalala, 986 F.Supp.57, 59 (Dist. Mass. 1997)].

As there are no reported cases involving electromagnetic therapy involving no-fault insurance claims nor are there any specific to the TMR 1200, the court is forced to analogize from these federal court rulings regarding other electromagnetic therapy protocols. It also would not make sense for one-third party source (Medicare) recognize that TMR treatments are reimbursable while another third party source(no-fault insurance) would find the treatments not covered based on lack of acceptance in the medical community. Either the procedure is accepted or it is not.

In rebuttal the physician who performed the TMR treatments, D’Angelo, explained how the process works and the benefits of using high frequency pulsed electromagnetic therapy to ease a patient’s pain. One of the reasons he recommends this treatment is that he believes it provides pain relief without the use of medication. Conceptually most people would agree that the less medication a person takes the better off they will be. However, as laudable as that goal may be, plaintiff in his rebuttal failed to reference any independent studies that document any real benefit from the TMR procedure. In fact, plaintiff did not [*7]articulate as to why this is a better protocol than regular low frequency electric stimulation therapy.

Clearly on a cost basis analysis justifying TMR that is billed at $800.00 a treatment session against the relatively low cost of the standard widely accepted electrical stimulation, which plaintiff testified is about $17.95 per session, and which most physical medicine practitioners utilize, is a huge burden to overcome. If that figure is accurate, a patient could undergo 44 regular electrical stimulation treatments for the cost of one by plaintiff using the TMR 1200 ^[FN5]. In a political and economic climate where rising health care costs are a concern to everyone, to require an insurance carrier to pay for treatments which are not widely accepted in the medical community and for which alternative less costly treatments are available does not make sense. Of course, this case has arisen in the “No-Fault Zone” where often procedures which either are non-emergency in nature or are being begun well after the date of the accident, are routinely paid by carriers when pre-approval would be required for the same treatments under any other type of insurance coverage.

Plaintiff testified that he recommends this procedure for patients who are not responding to conservative treatments. He asserts he is not recommending these treatments to patients who have experienced benefits from a conservative treatment plan. Yet the documents submitted in support of payment contradict that statement and reveal he is rendering these treatments within a relatively short period of time after the accident, often before the success of a standard course of treatment could be evaluated. In this case the accident was on October 22, 2010 and the first TMR treatment was on December 8, 2010, less than seven weeks later. There is no question that the injury received was related to the accident. The issue is whether the TMR is even recognized in the medical community as treatment for the injuries of Russo.

In light of this, the peer review physician Weiland, was correct in stating that such treatments are not “justified”either because less costly accepted treatment options had not been exhausted or from a cost/benefit analysis. It does not appear that cost standing alone is one of the criteria available to a carrier to disallow payment of a claim.

The court is reminded that science and improvements in medicine and health only advance when individuals are willing to experiment and take a chance on implementing new ideas and procedures. History is replete with examples such as Galileo Galilei who advocated a heliocentric solar system rather than the accepted thinking of his time of a geocentric one and was forced to recant his theories under the penalty of death; Edward Jenner who successfully developed a small pox vaccine and had to convince the medical establishment of its preventative abilities; or Joseph Lister who challenged the then current methods for treatment of wounds and promoted the use of antiseptics, and had the medical community accepted his teachings, perhaps James Garfield would not have died of the gunshot wound he received from Charles Guiteau. [*8]

On the other hand history is full of examples of “cures” for just about everything that “ails you” and hawked at “patent medicine shows” throughout America from real life examples such as Lydia Pickham’s Herb Medicine, Fletcher’s Castoria, and Kickapoo Indian Sagwa. To fictional ones like Al Capp’s “Kickapoo Joy Juice” from “Li’l Abner”; Jackie Gleason’s “Mother Fletcher’s” line of products; and “Pirelli’s Miracle Elixir” from Stephen Sondheim’s “Sweeney Todd.”

Conclusion:

Plaintiff should be encouraged to seek to find new treatments to benefit his patients. As noted by George and Ira Gershwin in “They All Laughed ^[FN6]” many people have had to advocate ideas and products which people at that time questioned but turned out to be accepted as the norm.

They all laughed at Christopher Columbus

When he said the world was round

They all laughed when Edison recorded sound

They all laughed at Wilbur and his brother

When they said that man could fly

They told Marconi

Wireless was phony

It’s all the same old cry….

They all laughed at Rockefeller Center

Now they’re fighting to get in

They all laughed at Whitney and his cotton gin

They all laughed at Fulton and his steamboat

Hershey and his chocolate bar

Ford and his misery

Kept the laughers busy

That’s how people are….

Plaintiff may be on the cutting edge of a new therapy treatment for soft tissue injuries and if he firmly believes that the procedure benefits his patients, should continue to provide the services, track the results and use his findings to convince the medical community of the benefits of electromagnetic therapy for persons with complaints similar to Russo’s.

Unfortunately, there is no evidence that high frequency electromagnetic therapy has been widely accepted in the medical community for the treatment of soft tissue injuries such as suffered by Russo in this accident. [*9]

Based on the fact that the defendant’s expert opined that the procedure is not accepted and that the plaintiff heard that testimony and had the opportunity to rebut it with evidence that it was accepted but failed to do so, the court must deny the claim for reimbursement.

In the event that the plaintiff can refute this presumption of nonacceptance with some independent recognized tests, the court will consider revisiting the issue in this or in another of the many open lawsuits for similar relief plaintiff has pending in this court.

Judgment for defendant. Plaintiff has failed to rebut defendant’s defense. Plaintiff’s cause of action is dismissed.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated:February 27, 2013

Staten Island, NYHON. PHILIP S. STRANIERE

Judge, Civil Court

ASN byon

Footnotes

Footnote 1:A rearrangement of the order of the lyrics to “You Gotta Have A Gimmick” from “Gypsy” Music by Jule Styne, Lyrics by Stephen Sondheim.

Footnote 2: Not to be confused with the TMR 1200 made by Patz and described as a vertical food mixer.

Footnote 3: Marvin actually used an Illudium Q-36 Explosive Space Modulator.

Footnote 4:It should be noted that the Aetna report does cite some studies where high-frequency pulsed electromagnetic stimulation has shown some benefits in wound healing and treatment of ulcers, Aetna denies coverage for all uses. Johns Hopkins recognizes for treatment of certain types of ulcers and certain wound therapies. Neither of them recognize it as beneficial for soft tissue injuries.

Footnote 5:By charging $800.00 for each treatment, plaintiff will recoup the cost of the TMR 1200 machine with 187.5 treatment sessions. Were plaintiff to have billed the service under standard electro-stimulation codes at $17.95 the machine would not be paid for until 8357 sessions had been completed.

Footnote 6:Written for the film “Shall We Dance” and sung by Fred Astaire.

[*1]

Civil Court of the City of New York, Queens County, February 25, 2013

APPEARANCES OF COUNSEL

Israel, Israel & Purdy, LLP, Great Neck (Justin Skaferowsky of counsel), for plaintiff. Peter C. Merani, P.C., New York City (William Larkin of counsel), for defendant.

{**40 Misc 3d at 350} OPINION OF THE COURT

Carmen R. Velasquez, J.

This is an action by the plaintiff to recover statutory interest and attorney fees on no-fault insurance claims that were overdue when they were paid by the defendant. The plaintiff has submitted proof that, on the dates indicated, the following four claims were mailed to the defendant:

1. March 10, 2009—$71.49 for services rendered to Ana Oneal [*2]

2. June 11, 2009—$1,392.52 for services rendered to Salvadore Rivera

3. June 25, 2009—$107.64 for services rendered to Salvadore Rivera

4. June 25, 2009—$186.80 for services rendered to Salvadore Rivera.

The claims were each paid as follows:

claim 1 was paid by draft dated June 1, 2009 for $71.49

claim 2 was paid by draft dated July 29, 2009 for $1,392.52

claim 3 was paid by draft dated August 16, 2009 for $107.64

claim 4 was paid by draft dated August 10, 2009 for $103.95.

“Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, insurers are required either to pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date the applicant supplies proof of claim” (New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006], citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997], rearg denied 90 NY2d 937 [1997]; also see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]). Based on the proof submitted by the plaintiff on this motion, the claims in this action were paid more than 30 days after they were mailed and received by the defendant. Therefore, the payments of the no-fault benefits made by the defendant were overdue (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011], citing St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

“An insurer’s failure to pay or deny a claim within 30 days carries substantial consequences. By statute, overdue payments earn monthly interest at a rate of two percent and entitle a claimant to reasonable{**40 Misc 3d at 351} attorneys’ fees incurred in securing payment of a valid claim (see Insurance Law § 5106 [a])” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007]; Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d at 278).

Insurance Law § 5106 (a) provides as follows:

“Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.”

11 NYCRR 65-3.9 (a), applicable to interest on overdue payments, provides as follows:

“All overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month. When payment is made on an overdue claim, any interest calculated to be due in an amount exceeding $5 shall be paid to the applicant or the applicant’s assignee without demand therefor.”

11 NYCRR 65-3.10 (a), applicable to attorney fees, provides as follows:

“An applicant or an assignee shall be entitled to recover their attorney’s fees, for services necessarily performed in connection with securing payment, if a valid claim or portion thereof was denied or overdue. If such a claim was initially denied and subsequently paid by the insurer, the attorney’s fee shall be $80. If such a claim was overdue but not denied, the attorney’s fee shall be equal to 20 percent of the amount of the first-party benefits and any additional first-party benefits plus interest payable pursuant to section 65-3.9 of this Subpart, subject to a{**40 Misc 3d at 352} maximum fee of $60.”

The overdue interest on plaintiff’s claims for $71.49, $107.64, $103.95 was less than five dollars and was not paid by the defendant. The overdue interest on the claim for $1,392.52, which exceeded five dollars, was also not paid. Demands for payment of the overdue interest and attorney fees were mailed to the defendant shortly after the claim payments were received, as indicated in plaintiff’s opposing papers. This action to recover the overdue interest and attorney fees was then commenced by the filing of the summons and complaint on November 5, 2009 and personal service upon the defendant on November 10, 2009.^[FN*]

Defendant’s claim that overdue interest is to be calculated on a 30-day-month basis, and not on a daily basis, has no merit. The Court of Appeals in Presbyterian Hosp. v Maryland Cas. Co. (90 NY2d at 278) stated that

“[p]ursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). Failure to pay benefits within the 30-day requirement renders benefits ‘overdue,’ and all overdue payments bear interest at a rate of 2% per month (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h]). Additionally, a claimant is entitled to recover attorney’s fees where a ‘valid claim or portion’ was denied or overdue (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [i]).”

This language makes it clear that overdue interest applies to “all overdue payments.” Moreover, the instruction in 11 NYCRR 65-3.9 (a) that interest is to be “calculated on a pro-rata basis using a 30-day month” explains the manner of determining the daily rate of interest based on a monthly interest rate of two percent per month, rather than restricting collection to a monthly amount. The statute, [*3]regulations and case law confirm that overdue interest is a payment to be imposed on a daily basis, with attorney fees, when a claim for no-fault benefits is{**40 Misc 3d at 353} not paid within 30 days of submission of the claim (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d at 494; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]; Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc 3d 8 [2011]).

On this motion and cross motion, as well as other motions that are pending, the issue is whether the plaintiff is entitled to recover overdue interest when it does not exceed the sum of five dollars indicated in 11 NYCRR 65-3.9 (a). The defendant contends that the regulation limits overdue interest to an amount exceeding five dollars that is to be paid, without demand, upon payment of the overdue claim. The plaintiff claims that the regulation does not preclude the applicant from demanding overdue interest below five dollars. There are prior orders in Civil Court, Queens County, that have decided this issue in cases involving different parties. These orders, some of which are signed by this court, have held that collection of overdue interest of less than five dollars is not precluded by regulation 11 NYCRR 65-3.9 (a).

According to the Governor’s Memorandum approving the no-fault system, its primary aims “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). The Superintendent of Insurance was given the responsibility for administering the Insurance Law “with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (Matter of Nicholas v Kahn, 47 NY2d 24, 31 [1979]). As a result, the Court of Appeals has long held that the Superintendent’s “interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009], citing Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]). However, “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language” (Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499, 506 [2005], citing 427 W. 51st St. Owners Corp. v Div. of Hous.{**40 Misc 3d at 354} & Community Renewal, 3 NY3d 337, 342 [2004]; also see Kurcsics v Merchants Mut. Ins. Co. 49 NY2d 451, 459 [1980]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 209 [2009]). Legislative intent is the great and controlling principle in statutory construction and the proper judicial function is to discern and apply the will of the legislature (Mowczan v Bacon, 92 NY2d 281, 285 [1998]; Matter of Scotto v Dinkins, 85 NY2d 209, 214 [1995]; Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

“The interest which accrues on overdue no-fault benefits at a rate of two percent per month is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply” (East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d at 210 [citations omitted]). The construction of 11 NYCRR 65-3.9 (a), that is advocated by the defendant, would preclude overdue interest of less than five dollars. This would conflict with the statutory language of Insurance Law § 5106 (a) which imposes interest on “[a]ll overdue payments.” The change would also tend to increase the delay in compensating low cost medical benefits that accumulate minimal overdue interest. Such a construction of the statute [*4]conflicts with its primary aims and violates the legislative intent.

The legislature was entitled to enact a limitation on the overdue interest in Insurance Law § 5601 (a), as it did by expressly eliminating interest of “less then two dollars” in Insurance Law § 3224-a (c) (1). However, the legislature did not exempt the overdue interest of less than five dollars, that is sought by the defendant. The Superintendent of Insurance also did not preclude the collection of overdue interest that is less than five dollars, if it is demanded. This court will not now prevent the collection of such interest.

Accordingly, the plaintiff’s motion for summary judgment is granted and the plaintiff is awarded judgment, pursuant to Insurance Law § 5106 (a), for the overdue interest and attorney fees alleged in the complaint. The defendant’s cross motion to dismiss the action is denied.

Footnotes

Footnote *: The defendant’s answer in this action was interposed by the office of Robert P. Tusa. However, Peter C. Merani, whose office submitted the cross motion and reply affidavit on this motion, is listed on the court records as the attorney for the defendant in this action. Therefore, it is appropriate for the court to consider these papers, despite plaintiff’s claim that Peter C. Merani is not the defendant’s attorney of record.

Civil Court of the City of New York, Kings County

99743/09

Attorneys for Plaintiff QUALITY PSYCHOLOGICAL SERVICES

Law Offices of Melissa Betancourt

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorneys for Defendant HARTFORD INSURANCE COMPANY

Iseman, Cunningham, Riester & Hyde, LLP

2649 South Road, Suite 230

Poughkeepsie, NY 12601

Harriet Thompson, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term

on2/15/12,

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ………………………………. ..1-2; 3-4

Order to Show Cause and Affidavits Annexed _____________

Answering Affidavits .._____5_____

Replying Affidavits ._____6________

Exhibits _____________

Other …………………………………………………._____________

PROCEDURAL HISTORYThis Civil Court action was commenced in or about September 21, 2009, by the service of [*2]a Summons and Endorsed Complaint to recover first-party No-Fault benefits as a result of alleged injuries arising out of an automobile accident which occurred on July 25, 2008. In or about November 17, 2009, the Defendant interposed a Verified Answer which contained various applicable and inapplicable affirmative defenses.

The Defendant moves this Court for summary judgment pursuant to CPLR §3212 by Notice of Motion returnable on August 16, 2011 on the grounds that the Plaintiff failed to submit to two properly scheduled Examinations Under Oath (hereinafter “EUO”), a condition precedent to insurance coverage and a violation of the Insurance regulations, precluding recovery of the medical claim. On the return date, the attorneys, by written agreement, adjourned the motion to February 15, 2012 for the parties to engage in motion practice.

The Plaintiff, in opposition, attacks the admissibility and credibility of the Defendant’s affidavits. The Plaintiff seeks to persuade this court that the certificate of conformity affirmed by ALAN CHANDLER, ESQ. does not contain the language “under the penalties of perjury” pursuant to CPLR §2106 and therefore, is inadmissible. The Plaintiff also argues that the out-of-state affidavit of NANCY ALPIZAR is missing a certificate of conformity altogether and is void as a matter of law. Additionally, Plaintiff argues that the affidavits do not establish proper and timely mailing of the EUO notices and denials since it contains various factual discrepancies. The Plaintiff also argues that the Defendant failed to establish that EUO requests were properly mailed since the certified mail return receipts are absent from the motion; the Defendant failed to schedule the EUO’s in the county where the Plaintiff resides and therefore, it is palpably improper; and the Defendant failed to properly rebut the prima facie case of the Plaintiff and accordingly, the Plaintiff is entitled to judgment as a matter of law.

In reply, and in further support of the Defendant’s motion for summary judgment, the Defendant challenges the Plaintiff’s argument that the certificate of conformity of ALAN CHANDLER, ESQ. is defective for failure to swear “under the penalties of perjury” pursuant to CPLR §2106 and asserts that the certificates of conformity for the out-of-state affidavits are proper. The Defendant further reiterates that the affidavits of the Defendant’s Claims Representative and the Defendant’s Mailing Courier Representative are sufficient to establish the timely mailing of EUO letters and denials of the claim (NF-10) and lastly, argues that the request for a specific witness affiliated with the Plaintiff (Dr. Herbert Fischer, Ph. D., the treating physician) to appear for the EUO outside of the Plaintiff’s county was waived due the lack of any objections to the requests.

The Plaintiff, by Notice of Cross Motion, returnable on February 15, 2012, also seeks summary judgment. The Plaintiff contends that it has established its prima facie case through the submission of the proper proof of claim in the form of a health care services application (NF-3) that was properly generated and timely mailed to the Defendant in the ordinary course of business, the claim was received by the Defendant and the Defendant failed to make payment within thirty (30) days of receipt as required by No-Fault Insurance Law and regulations or to take any action to properly toll the time constraints imposed by 11 NYCCRR §65.

Both parties appeared by their attorneys and after oral argument, this Court reserved decision for a final disposition. [*3]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following facts are uncontroverted. Justas Kalvaitis was treated by the above named Plaintiff for alleged injuries between August 26, 2008 and September 29, 2008 for the total sum of $1,341.14. The bills for the above services were received by the Defendant on September 29, 2008.

In order to establish its prima facie case, the Plaintiff must prove that the proper notice of claim for the medical services provided to the assignor was mailed to the Defendant and received by the Defendant, and that payment of the No-Fault benefits were neither paid or denied within thirty (30) days of receipt. Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742, 774 NYS2d 564 (2nd Dept., 2004) [plaintiff hospital made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue]; see also Westchester Med. Center v. Liberty Mutual Ins. Co., 40 AD3d 981, 837 NYS2d 210 (2nd Dept.-, 2007); Insurance Law 5106(a).

The No-Fault Law requires the insurance carrier to either pay or deny the claim for No-Fault benefits within thirty (30) days from the date of receipt of the claim. Insurance Law, §5106(a); 11 NYCRR §65.15(g)(3). Within ten (10) business days after the receipt of the NF-2, the insurer must send verification forms to the insured or the provider. In the regulations, after receipt of the completed verification, the insurer may seek “additional verification” or further proof of claim from the insured or assignee within fifteen (15) days thereof. 11 NYCRR 65§ 3.5(b). The insurer may seek additional verification in the form of an independent medical examination (IME) within thirty (30) days from the date of the initial medical bills (11 NYCRR65.3.5(d)), or as in this case, if the insurer requires an EUO of the insured or provider to establish such proof of claim, the EUO must be based upon “the application of objective standards so that there is specific objective justification supporting the use of such examination”. Such standards are subject to review by the Insurance Department. 11 NYCRR §65-3.5(e). The regulations direct that the insured or provider be informed that the use of either the IME or EUO by the insurer require the insurer to reimburse the affected party for “any loss of earnings and reasonable transportation expenses.”

If any additional verification has not been provided to the insurer within 30 calendar days after the original request, the insurer shall, within ten (10) calendar days, “follow-up” with the noncompliant party by either telephone call or by mail. 11 NYCRR § 65.3.6 (b). At that time, the insurer must notify the claimant or their representative of the basis for the delay of the claim by “identifying, in writing, the missing verification and the party from whom it was requested.”

The prescribed thirty (30) day time line to pay or deny a claim is tolled until the insurer has received proper verification of all relevant information requested of the injured party or provider. 11 NYCRR 65.15(d), (g), (7); St. Vincent Hospital of Richmond v American Tr. Ins. Co., 299 AD2d 338, 750 NYS2d 98 (NY A.D., 2002). The burden does not shift to the insurer to pay or deny the claim until the required party has complied with the verification request.

Of course, in reality, the insurer does not always act timely. In this judicial department, the Appellate Division in Keith v. Liberty Mutual Fire Ins. Co., 118 AD2d 151, 503 NYS2d 441 (1986) determined that 11 NYCRR 65.3.8(j), which describes the process of deviation from the rules which [*4]reduces the thirty calendar days for regulatory noncompliance, that “[a]lthough the clock does not begin to run on the thirty-day calendar requirement until the insurer receives all of the necessary verification … the insurer’s lack of diligence in obtaining the verification may reduce the thirty-day period even before verification is obtained. In that case, the insurer was four business days late in requesting the verification and thus, the insurer’s thirty-day calendar days to pay or deny the claim must be reduced by four days, leaving 26 days.”

According to Judge Hagler, in Inwood Hill Med v. Allstate, 3 Misc 3d 1110 (A), 787 NYS2d 678 (NY Civ. Ct., 2004), a thorough and excellent analysis of the No-Fault regulations, the thirty (30) day rule does not apply to requests for additional verification within the prescribed time frame and this court concurs. He states that “the inconsistency may be resolved by stating that the insurer’s time is not reduced where it sought the additional verification request late but within the prescribed thirty calendar days (i.e. more than fifteen business days and up to twenty-nine days which would not effectively reduce the thirty days to zero). Where the insurer either seeks additional verification requests or even provides a time to respond outside the thirty calendar days, the proverbial clock has run and there is no need to resort to the 11 NYCRR 65-3.8(j) counting requirement. A contrary interpretation of the regulation would run counter to the clear wording of Insurance law §5106(a) providing for the strict 30-day rule. See Karciscs v. Merchants Mutual Ins. Co., 49 NY2d 451, 426 NYS2d 454 (N.Y, 1980).”

An EUO permits the insurer to question the injured party or its assignee regarding the claim. As Judge Hirsh aptly stated in Dynamic Medical Imaging, P.C. v State Farm Mutual Auto Ins., 29 Misc 3d 278, 905 N.Y.S.2d 880 (Dis. Ct. Nassau) “while an EUO has been treated by the courts as a condition precedent to coverage, the no-fault regulations treat the EUO as a form of verification. Thus, where a carrier properly demands an EUO “…the verification is deemed to have been received by the insurer on the day the examination was performed. 11 NYCRR 65-3.8(a)(1).” In addition, it has been held that the appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay no-fault benefits (Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc 3d 141(A), 91 NYS2d 692 (N.Y.Supp. App. Term, 2010)).

As the Defendant correctly states in the instant motion, all automobile insurance policies with No-Fault endorsements in our state contain the prescribed language of the Insurance Regulations. Specifically, 11 NYCRR 65-1.1 provides that “[u]pon request by the Company, the eligible injured person or that person’s assignee or representative shall:…(b) as may reasonably be required to submit to examination under oath by any person named by the Company and subscribe same…..”

Moreover, 11 NYCRR 65-3.5 (c) states that “[t]he insurer is entitled to received all items necessary to verify the claim directly from the parties from whom such verification was requested.” Lastly, as also correctly argued by the Defendant, 11 NYCRR-1 provides that “[n]o action shall lie against the Company, unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” After all, the goal of the insured or provider is to get paid and each must act in good faith and cooperate with the insurer to achieve that purpose. So even if the insured believes it can not or should not comply with the insured’s request, the insured has a duty to communicate with the insurer about that request. See Dilon Med. Supply Corp. v. Travelers Ins. Co., 7 Misc 3d 927, 796 NYS2d 872 (NY Civ Ct, Kings County, 2005). [*5]

The most significant substantive issue before this court is whether the affidavits of mailing meet the requirements of the No-Fault law to establish proper proof of mailing of the EUO notices and the denials. Surprisingly, there are a significant number of cases that tackle, what at first blush appears, seemingly a simple issue. It is essential that we examine the legal criteria adopted by the courts for establishing proper mailing.

The common law doctrine of presumption of regularity is still alive in New York State despite arguments to the contrary. Generally speaking, a letter or notice that is properly stamped, addressed and mailed is presumed to be received by the addressee. News Syndicate Co. v. Gatti Paper Stock Corp., 256 NY 211, 176 NE 169 (NY, 1931); New York New Jersey Products Dealers Coop v. Mocker, 59 AD2d 970, 399 NYS2d 280 (NY A.D., 3d Dept., 1977). A simple denial of receipt has been held insufficient to rebut this presumption. Countrywide Home Loans, Inc. v. Brown, 305 AD2d 626, 760 NYS2d 200 (NY AD2d Dept., 2003) . See also Precision Dev. V. Hartford Fire Ins. Co, 10 Misc 3d 1055(A), 809 NYS2d 483 (NY Sup., 2005) where the court precluded recovery on a payment bond issued by the Defendant based on the failure of the Plaintiff to comply with the notice requirements of the State Finance Law. The court would not allow the Plaintiff’s to rely on this common law presumption of regularity to prove receipt of the required notice based on the legislative mandate that the notice of claim by the contractor be made by personal delivery or by registered mail. Conversely, the No-Fault regulations, namely, 11 NYCRR 65-3.5(a) state that once the insurer receives the NF-2 application for benefits, the insurer “[s]hall forward to the parties those prescribed verification forms it will require prior to payment of the initial claim.” As Judge Tapia recently stated in Hastava & Aleman Assoc. P.C. v. State Farm Mut. Auto Ins. Co., 24 Misc 3d 1239(A), 899 NYS2d 59 (Civ. Ct., Bx Ct., 2009) “the regulation uses “forward” to describe the manner in which notification is to be effected. The only kink is determining what constitutes sufficient “notice” because the regulation does not specify the mailing procedure by which to notify the injured party.” In that case, the court determined that the mailing of a letter by certified mail, return receipt requested is entitled to the same presumption of receipt as regular first-class mail in the absence of the signed returned receipt”. Furthermore, “satisfying No-Fault policy conditions does not have to be compromised at the expense of challenging mailing procedures because proof of mailing of verification letters via regular USPS is enough to create a presumption of receipt. In addition, the use of certified mail does not create a more demanding presumption of mailing and receipt beyond that of a letter that was properly mailed. The regulations make no distinction between sending a letter via regular mail or via certified mail.”

The presumption of receipt may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 (2001); Nassau Ins Co. v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978); Matter of Francis v. Wing, 263 AD2d 432, 694 NYS2d 29 (NY A.D. 1st Dept., 1999); Azriliant v. Eagle Chase Assoc., 213 AD2d 573, 575, 624 NYS2d 238 (NY AD2d Dept., 1995); Phoenix Ins. Co v. Tasch, 306 AD2d 288, 762 NYS2d 99 (NY AD2d Dept., 2003); Matter of Colyar, 129 AD2d 946, 947, 515 NYS2d 330 (NY AD3d Dept., 1987). Therefore, affidavits that merely state that the bills were mailed within the statutory time period have been held insufficient to establish proof of actual mailing. Comprehensive Medical v. Lumbermens Mutual Ins. Co., 4 Misc 3d 133(A) (App. Term 9 & 10th Jud. Dists, 2004). [*6]

The burden is on the insurer to present an affidavit of an employee who personally mailed the verification/denial, or on the other hand, an affidavit of an employee with personal knowledge of the office’s mailing practices and procedures. Such individual must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim (emphasis added).

By demonstrating its routine and reasonable office procedures, the Defendant meets its burden of proof that the notices were mailed to the plaintiff and were received. The burden then shifts to the plaintiff to rebut the presumption of receipt. Abuhamra v. New York Mut. Underwriters, 170 AD2d 1003, 566 NYS2d 156 (NY A.D. 4th Dept., 1991); Residential Holding Corp. v. Scottsdale Ins. Co., supra. It is worthy of repetition that the denial of receipt, standing alone, is insufficient to rebut the presumption. Indeed, “[i]n addition to a claim of no receipt, there must be a showing that the routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed. Nassau Ins Co. v. Murray, 46 NY2d 828, 414 NYS2d 117 [1978]; See also Badio v. Liberty Mutual Fire Ins. Co., 12 AD23d 229, 785 NYS2d 52 (App. Div., 1st Dept., 2004).

Having discussed the frame work of the insurance law and regulations to lay the proper foundation for our analysis in the case at bar, the court makes the following findings of facts and conclusions of law.

The Plaintiff submitted a proof of claim in the form of a health care services application (NF-3) for reimbursement for health care services rendered to the assignor, JUSTAS KAVAITIS, in the amount of $1,341.14 for dates of services from 8/26/2008-9/16/2008.

The affidavit of STEVEN HAYDEN, an employee in the Special Investigation Unit since 1999 at Hartfort, informs the court that there was an ongoing investigation into the operation and management of the provider, QUALITY PSYCHOLOGICAL SERVICES, P.C., independent of this case. This case is yet another case that has delved into the operation and billing practices of the Plaintiff. The affidavit of STEVEN HAYDEN states that the Defendant commenced the investigation to verify bills submitted by the Plaintiff, [s]pecifically, Hartford initially questioned the fact that nearly all clinical findings of QUALITY PSYCHOLOGICAL SERVICES, P.C., were identical from patient to patient and the frequency and duration of their psychological testing and treatment appeared to be excessive. He further states that…”the bills and records…not only appeared to be boilerplate, but also incomplete and inaccurate information was provided”. Additionally, …in many records submitted…references were made to a patient’s age or sex, which was inconsistent with the other information submitted by the patient, including their no-fault application or personal identification (HAYDEN affidavit at ¶3 and ¶4). As significant, he affirmed that the Defendant “…learned that in a majority of instances these patients had not had psychological problems or complaints, yet the records submitted by QUALITY PSYCHOLOGICAL indicated otherwise and during the investigation…[he] learned that many patients actually never received treatment and/or testing billed by QUALITY PSYCHOLOGICAL to Hartford” ( HAYDEN affidavit at ¶5 and ¶6).

The court finds that the prior investigation and the investigation of this particular case produced ample evidence to warrant such a demand for the EUO and such demand was fair, [*7]reasonable and in accordance with the above insurance regulations. Based on the above findings, it is the opinion of this court that the Defendant properly sought the EUO of the treating physician, Herbert Fischer, Ph. D. to investigate the claim.The court also finds no impediment, statutorily or otherwise, for the insurer to demand the appearance of the treating physician of the Plaintiff corporation at the EUO particularly since the regulations provide that the insurer may insist on the appearance of “any person named by the Company”. 11 NYCRR 65-1.1. Moreover, since the treating physician is responsible for the actual treatment of the patient, such individual would have exclusive knowledge of the course of treatment of the assignor including but not limited to the patient’s logs, narrative reports, testing, diagnoses, prescriptions, file memoranda and the like. Although the Plaintiff argues that is was palpably improper for the Defendant to schedule the EUO outside of the county of the Plaintiff, this claim is without merit. Since the Plaintiff did not object, in writing or orally, to the EUO notice, the court finds that the Plaintiff waived any objection to the content and scope of the EUO request. Dilon Med. Supply Corp. v. Travelers Ins. Co., supra.

To establish its prima facie case, the Defendant relies on the affidavit of SARA LOMNICKY. SARA LOMNICKY, at the time of this claim, was a No-Fault Claims Specialist with the Defendant’s No-Fault Department located at 8 Farm Springs Road in Farmington, Connecticut. She states that she has knowledge of Defendant’s mailing procedures used in connection with written requests for EUO’s and/or the production of other documents, as well as the mailing of any denial of claim forms based upon her eight (8) years of employment experience at Hartford. She specifically states that “based on my personal knowledge of the preparation and mailing of the documents at issue in this matter under claim number YXHAF65085”, the EUO notices to the assignor were sent by certified mail (SARA LOMNICKY affidavit at ¶4). She explicitly describes the mailing procedures of the Defendant in paragraphs 15 (a)-(o). Based upon her knowledge of Defendant’s mailing practices and procedures and her review of the file in the instant matter, SARA LOMNICKY informs the court that the Defendant received the medical bills on September 29, 2008 and this fact is undisputed by the Plaintiff. The first EUO letter was mailed on October 3, 2008, within the prescribed fifteen (15) business days after the receipt of the claims, seeking an EUO on October 28, 2008. Then, when the Plaintiff failed to provide the documentary evidence demanded by the verification or appear for the EUO on October 28, 2008, the insurer on November 5, 2008, within ten (10) calendar days after that request, issued a “follow-up” notice for an EUO on November 26, 2008. The EUO request was in compliance with the insurance regulations by identifying the missing verification which the assignor was required to provide to comply with the insurance policy. The letter highlights that ” the policy of insurance under which [your] claim is made requires claimants to cooperate with our investigation, produce the demanded documents and [to] testify [at] an examination under oath. The EUO notice demands ten enumerated documents from ¶1- ¶10 which the Plaintiff was duty bound to produce at the EUO, since as stated above, the Plaintiff waived all objections.

On December 2, 2008, the Defendant issued a timely denial for payment of the health care services performed by the Plaintiff based on the grounds that the Plaintiff failed to appear at two scheduled EUO’s. The Defendant attaches the denial of claim form as Exhibit A-3 which explicitly states that “all benefits are denied for failure to cooperate in the claims investigation, policy condition violated and failure to appear for Examinations Under Oath on October 28, 2008 and November 26, 2008.” Furthermore, it also states that the insured or her representative did not [*8]comply with the insurance policy “without a reasonable excuse” and the insurer would reconsider its position should the assignor or representative provide a reasonable excuse for noncompliance. The Plaintiff has not offered any “reasonable excuse” for noncompliance with the insurance policy or the law.

The Defendant also proffers the affidavit of NANCY ALPIZER, a Supervisor with Pitney Bowes, to complete the practices and procedures of the Defendant insurer’s mailing procedures. She affirms that a courier from her company picks up the mail from the Defendant’s Farmington, Connecticut office every weekday at 3:00 p.m. and at 4:30 p.m. and delivers the mail to the US Post Office on that same day. All of the mail that is picked up on a particular day is delivered to the US Post Office on the same day. The court finds this affidavit reliable and is ample proof of the completion of the mailing practices and procedure of the Defendant particularly since Pitney Bowes is a nonparty witness that has no stake in this litigation notwithstanding the contractual relationship with the Defendant.

Lastly, the Defendant provides the affirmation of JOSHUA E. MACKEY, ESQ., the attorney responsible for conducting the proposed EUO of Herbert Fisher, Ph.D. JOSHUA E. MACKEY affirms he was present in his office prepared to take the EUO of the Plaintiff on both dates and no one affiliated with Plaintiff’s office appeared on either date. He also attests that the Plaintiff did not supply the various documents requested to verify the medical services, to wit: patient questionnaire, charts, handwritten notes, memoranda, any referrals, medical treatment, testing and examinations.

The above evidentiary proof submitted by the Defendant is sufficient to demonstrate timely and proper mailing of all EUO letters and the denials. By demonstrating its routine and reasonable office procedures, the Defendant meets its burden of proof that the notices were mailed to the Plaintiff and were received. The burden now shifts to the Plaintiff to rebut the presumption of receipt and to raise a triable issue of fact. Abuhamra v. New York Mut. Underwriters, supra; Residential Holding Corp. v. Scottsdale Ins. Co., supra. The opposition papers of the Plaintiff as well as the supporting attorney affirmation, party affidavit and documentary evidence annexed to the Plaintiff’s cross motion do not contain any factual claims that the EUO notices were not received and is devoid of any claim of any fatal defect(s) in their content; neither do they assert in any manner that the routine office practice was not followed or was so haphazard that it would be completely unreasonable to assume that the notice was mailed and received by the Plaintiff. Therefore, the Plaintiff having failed to meet its burden, this court finds that all of the notices and denials were timely received by the Plaintiff.

Although this irrefutable proof has been produced by the Defendant, the Plaintiff argues that the lack of the certified mail receipt is fatal to the Defendant’s case. This contention is without merit. The lack of the certified mail receipts is insignificant in this case. The certified mail receipts are superflorous and the court will not infer any negative inference from their absence; the Defendant, through irrefutable admissible evidence in the above affidavits and supporting documents, established proper and timely mailing of the EUO notices and the denials.

Does the Plaintiff raise any issue of fact that would warrant the denial of summary judgment for the insured? The answer is in the negative. The Plaintiff’s papers do not raise any issue of fact; it contains only the affirmation of the attorney for the Plaintiff. As the Court of Appeals has firmly held an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts [*9]is of no probative value and is insufficient to support an award of summary judgment; in our case, to defeat an award for summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, 2nd & 11th Jud. Dists, 2004]; Wisnieski v. Kraft, 242 AD2d 290, 6691 NYS2d 46 [NY A.D., 2d Dept., 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317, 739 NYS2d 171 [NY A.D., 1st Dept., 2002]). Thus, even when the attorney has affirmed that a review of the file and records of his client is the basis of his knowledge, the Appellate Courts have consistently determined that it is insufficient to defeat a motion for summary judgment. (See Park Health Ctr. v. Green Bus Lines, Inc., App. Term., 2d & 11th Jus. Dists., 2002 NY Slip Op. 40029[U]) in which the court found that “[t]he defendant’s attorney submitted an opposing affirmation, based on his knowledge which was “obtained from a reading of the files,” wherein he alleged that the NF-2 form was not in the certified mailing and asserted that defendant first received a completed no-fault application on April 10, 1995, was insufficient to defeat summary judgment. In the absence of an affidavit from one with personal knowledge of the facts, the defendant’s attorney’s affirmation is insufficient to establish the existence of a triable issue of fact (Drug Guild Distribs. v 3-9 Drugs, 277 AD2d 197, 715 NYS2d 442 [NY AD2d Dept., 2000]). See also Drug Guild Distribs. v 3-9 Drugs, supra, where the Appellate Division held that “an affidavit of [the Defendant] president and an affirmation of counsel, that it never ordered or received these goods, and that the invoices, receipts, and account statement produced by the plaintiff were fraudulent” were insufficient to defeat summary judgment. ” The defendant’s conclusory denial of the transactions is insufficient to counter the facts established by the plaintiff’s documentary evidence”. See also Park Health Center v. Green Bus Lines, Inc., (2002 WL 416484, 2002 NY Slip Op. 40029(U).

Furthermore, the affidavit of VICTORIA SIMKINA, the Supervisor of Billing for QUALITY PSYCHOLOGICAL SERVICES, P.C., as described in the cross motion, was submitted only to attest to the mailing practices and procedure of her employer of the claim forms. Her affidavit and that of the attorney never rebuts the presumption of receipt of the EUO notices and denials. In fact, neither sworn statement allege that the EUO notices were not received and that the mailing practices and procedure was not properly implemented by the Defendant.

We the substantive issues established in this case, this court shall examine the alleged defects claimed by the Plaintiff in the Defendant’s papers. The Plaintiff asserts that the certificate of conformity by ALAN CHANDLER, ESQ. accompanying the affidavit of SARAH LOMINKY should be deemed fatally defective because it was not sworn to under the “penalties of perjury” pursuant to CPLR Rule §2106. The Plaintiff also argues that the affidavit of NANCY ALPIZER is void since it lacks a certificate of conformity altogether. This court has conducted substantial research involving this issue with our civil cases and found no statutory authority or case authority to support the proposition that the lack of the words “under penalty of perjury” makes the certificate of conformity inadmissible.

Rule §2106 provides in relevant part that “the statement of any attorney admitted to practice in the courts of the state,…authorized to practice law in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit”. Plaintiff’s reliance on this provision is misplaced. This rule is limited to professionals licensed in our state and permits them [*10]to submit affirmations instead of affidavits.

The applicable section of the CPLR is §2309(a) and ( c). A certificate of conformity is an acknowledgment that a legal document conforms to the law of the place where it is taken. CPLR Section 2309(c) in conjunction with RPL Sections 299 and 311, allows an oath or an affirmation taken outside of the state administered by any person authorized to take acknowledgments of deeds under the real property law. CPLR Section 2309(c ) states that “an oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.”

CPLR §2309 thus adopts the requirements of RPL§299 and §311, which govern acknowledgment of deeds and authentication of acknowledgments outside the state. RPL 299 (3) specifically designates a notary public as a person eligible to acknowledge deeds outside of the state of New York. RPL §311(5) describes the limitations for a certificate of authentication “…except as provided in this section, no certificate of authentication shall be required to entitle a conveyance to be read in evidence or recorded in this state when acknowledged or proved before any officer designated in section two hundred ninety-nine or in section three hundred one of this chapter to take such acknowledgment or proof.”

As Professor David I. Siegel states in NY Practice, (2d ed), this oath …as long as it is , it will be backed, at least theoretically, by the perjury penalties in the Penal Law, which defines “oath” to include “an affirmation and every other mood authorized by law of attesting” to what is said. This affirmation, by the way, is a form of oath, duly taken before one qualified to administer an oath, and should not be confused with the “affirmation” authorized by CPLR 2106.”

In this case, the statements of both witnesses were sworn to before a notary public and then subsequently, the attorney affirmed that the “oath” was performed in accordance with the laws of the state of Connecticut. The “affidavit of merit” for NANCY ALPIZAR is a certificate of conformity. The Court’s review of the content of the “affidavit of merit” reveal that it is a certificate of conformity; it was merely given the wrong title in the caption.

This court has also reviewed the case precedent cited by Hartford Insurance Company and is in accord. The absence of a proper certificate of conformity is not fatal to this motion but is “a mere defect in form which can be given nunc pro tunc effect once properly acknowledged.” (JP Morgan Chase Bank, N.A. v. S.I. Wood Furniture, 34 Misc 3d 1214(A), 946 NYS2d 67 [Sup. Ct, Kings County, 2012]); Hall v ELRAC, 79 AD3d 427, 913 NYS2d 37 [NY A.D. 1st Dept., 2010]; Betz v. Daniel Conti, Inc., 69 AD3d 545, 892 NYS2d 477 [NY AD2d Dept., 2010]; Matapos Tech. Ltd. v Compania Andina De Comercio Ltd., 68 AD3d 672 , 891 NYS2d 394 [NY A.D. 1st Dept., 2009]; Moccia v Carrier Car Rental, Inc. 40 AD3d 504, 837 NYS2d 67 [NY A.D. 1st Dept., 2007]; Smith v Allstate ins. Co., 38 AD3d 522, 832 NYS2d 587 [NY A.D. 2nd Dept., 2007]; Falah v Stop & Shop Cos. Inc., 41 AD3d 638, 838 NYS2d 639 [NY AD2d Dept., 2007)]; Sparaco v Sparaco, 309 AD2d 1029, 765 NYS2d 6683 [NY AD3d Dept., 2003]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 83, 548 NYS2d 98 [NY AD3d Dept., 1989]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C2309:3 at 348). [*11]

As important, our courts, pursuant to CPLR §2001, have the authority, at any stage of an action, to permit a mistake, omission, defect or irregularity, to be corrected and disregarded, upon such terms as may be just if a substantial right of a party is not prejudiced.

In our case, the Plaintiff has not disputed the authenticity of the notary public or the substance of the certificate of conformity. The Plaintiff has also not made any allegations of any prejudice or undue hardship resulting from this defect and the record in this action does not support any finding of prejudice or hardship to the Plaintiff. As Judge Demarest so aptly stated in JP Morgan Chase N.A. v S.I. Wood Furniture Corp., supra, “inasmuch as the content of the documents submitted, as opposed to their form, is what is critical to the determination of this motion, [Plaintiff] cannot be permitted to seize upon any technical requirements of CPLR 2309(c) to create delay and avoid [dismissal]) see Falah, 41 AD3d at 639; Smith, 38 AD3d at 523; Nandy, 155 AD2d at 834). Consequently, this Court deems the two certificates of conformity executed by ALAN J. CHANDLER, ESQ. dated June 30, 2011 admissible and any defect therein disregarded.

The court has reviewed the other claims by the Plaintiff of alleged factual discrepancies’ and finds that they are without merit.

For all of the reasons described above, the Plaintiff’s motion for summary judgment is denied, the Defendant’s motion for summary judgment is granted and the complaint is dismissed with prejudice.

A courtesy copy of this decision and order shall be mailed by the court to both parties.

The Defendant shall submit a judgment of dismissal to the Clerk of the Court and upon issuance thereof, shall serve a copy of the judgment and this order and decision with notice of entry on the Plaintiff within 45 days thereafter.

This constitutes the decision and order of this court.

_________January 15, 2013____________________________________________________________

DateHON. HARRIET THOMPSON

Judge of the Civil Court

Civil Court of the City of New York, Kings County

126179/09

Attorneys for Plaintiff GBI Acupuncture, P.C. and Liberty Chiropractic P.C.

Law Offices of Melissa Betancourt

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorneys for Defendant Esurance Ins. Co.

Law Offices of Michael G. Nashak

15 Metrotech Center, Floor 19

Brooklyn, NY 11201

Harriet L. Thompson, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term

on3/27/12,

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ………………………………. ..1-2, 3

Order to Show Cause and Affidavits Annexed _____________

Answering Affidavits ..___4_______

Replying Affidavits ._____________

Exhibits _____________

Other …………………………………………………._____________

This action was commenced in or about December 3, 2009 by the service of a Summons and Complaint to recover first-party No-Fault benefits as a result of alleged injuries arising out of an [*2]alleged automobile accident which occurred on May 12, 2009. In or about March 11, 2010, the Defendant interposed a Verified Answer by its attorney which contained various affirmative defenses to the underlying complaint.

PROCEDURAL HISTORY

The Defendant, by Notice of Motion, moves this Court pursuant to CPLR§3212 for summary judgment dismissing the complaint. The Defendant contends that the complaint lacks merit because the Assignor, after service of timely and proper notices of four independent requests for examinations under oath (hereinafter referred to as “EUO”), at four different addresses to the assignor and two notices to her attorney, she and her attorney failed to appear. The Defendant proffers three supporting affidavits; to wit: ERIN SCHABE, the Claim Representative who attests to the receipt of the medical bills from the assignee, and the timely mailing of the denials based on the aforementioned breach of the insurance policy; JASON FORTIER as Claims Manager who attests to the mailing practices and procedures of the Defendant and assures this court that the proper procedures were employed by the Defendant to assure that the denials were timely and properly mailed in accordance with said practices and procedures, and were not returned to the Defendant as undeliverable; MICHAEL G. NASHAK, ESQ., the Managing Attorney for the Brooklyn Staff Counsel Office that attests to the proper business practices and procedures employed by his office in mailing, scheduling and conducting EUO’s in the ordinary course of business of his law office; MERCEDES ROMERO, his assistant clerk that attests to drafting and scheduling the EUO notices and having them signed by the aforesaid managing attorney, the mailing the EUO notices by regular mail or certified mail, return receipt requested, “where indicated”, confirming the EUO appearances, awaiting the arrival of the claimant and notifying the Managing Attorney and the Defendant of the appearance or nonappearance of the claimant at the EUO. The Defendant asserts that the failure of the Plaintiff to provide additional verification by the failure to appear for an EUO is a breach of an express condition precedent of the insurance policy and state regulations, and accordingly, the Plaintiff is not entitled to payment of No-Fault benefits under the policy. Consequently, the Defendant claims that there are no triable issues of fact and judgment should be granted in its favor.

In opposition to the Defendant’s motion, the Plaintiff attacks the sufficiency of the affidavit of each of the above named individuals, namely the lack of specificity of the time of mailing in ERIN SCHABE’S affidavit; the defective affirmation of MICHAEL G. NASHAK, ESQ., which excludes the state and county on the affirmation and lack of a legally sufficient caption of this case and argues that the affirmation neglects to specify that he was present in the office on the date of the alleged nonappearance by the assignor; the affidavit of MERCEDES ROMERO that lacks the proper index number for the case, proper legal caption and the name of the court. In addition, Plaintiff contends that MERCEDES ROMERO cannot attest to the nonappearance of the assignor on August 19, 2010 and September 10, 2009 because she did not work at that scheduled location. Further, the Plaintiff claims that the Defendant neglected to annex a letter dated August 19, 2009 to prove the proper number of EUO requests mandated by case authority and the insurance regulations to prove noncompliance with the insurance policy; the affidavit of MERCEDES ROMERO and MICHAEL G. NASHAK, ESQ., do not contain any certificate of mailing as alleged in their affidavits and thus, lack credibility; the EUO letters do not comport with the insurance regulations insomuch that the 3rd [*3]EUO letter and 4th EUO letter are only twelve (12) days apart; and the Defendant failed to establish that the EUO letters dated July 29, 2009 and September 4, 2009 were sent to the assignor and to her attorney.

The Plaintiff, by Notice of Cross Motion, moves this Court pursuant to CPLR §3212 for summary judgment asserting that the Plaintiff timely and properly mailed the prescribed bills and assignment of benefit form for No-Fault benefits; the Defendant received the bills and assignment of benefits form; the Defendant did not timely deny the bills; and the bills remain unpaid and are overdue. The Plaintiff presents the affidavit of YAKOV SIMKHAEV, the Supervisor of Billing for both assignors, that attests to the office practices and procedures for generating and mailing of their No-Fault claims and verification, and receipt of the denials. She describes the business practice and procedures of the office of the Plaintiff from the initial office visit of the claimant to the creation of the medical bills generated in the ordinary course of business. She states that she personally mailed the bills by first class mail with a certificate of mailing; and affirms that payment is overdue on the bills.

FINDING OF FACTS AND CONCLUSION OF LAW

This court is cognizant of the reality that many lawyers invariably seize every opportunity to assert the right to victory by summary judgment based on “technical” or “procedural” irregularities in the pleadings. More often than not, these claims are often obscure and insignificant to the ultimate outcome of the litigation.

Having this prospective in mind, lets look to the law, specifically, CPLR §104 that states that the Civil Practice Law and Rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding. This section of the law was intended to liberalize court procedures and do away with unnecessary and burdensome motion practice. The courts in this state, where at one time, “formal precision was the sovereign talisman…” have long ago held that “the rule of strict construction of statutes in derogation of the common law principles [are] inapplicable”. Schneider v. Schneider, 17 NY2d 123, 127, 269 NYS2d 107, 216 NE2d 318, 320 (1966). One of the few areas that the courts continue to enforce procedural conservatism is with provisional remedies. Valentine Dolls, Inc. v. McMillan, 25 Misc 2d 551, 202 NYS2d 620 (1960).

With the same principles at the forefront, careful attention should also be given to a companion provision of the CPLR, namely, Section 2001 which maintains that “at any stage of an action the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just. This section is supportive of the policy in this state that just determination shall be based on matters of substance, not form and to the ultimate end of justice, that slight mistakes or irregularities shall not invalidate legal proceedings.

As significant, there are other related provisions in the CPLR that should also be reviewed to this end. CPLR 5512(a) and 5520 make express provision for similar relief in connection with omissions or defects in taking appeals. Looking to CPLR §3026 which expressly mandates that pleadings shall be liberally construed and that defects in pleadings shall be ignored if a substantial right of a party is not prejudiced. The reader is urged to generally review the Practice Commentaries in the CPLR under these respective statutory provisions; also see Siegel, New York Practice §6, et [*4]seq. (2nd ed.)

These statutes are routinely enforced by our courts and more recently, the Appellate Division, Second Department, reaffirmed the underlying policy of the judiciary in an election law case where the court found that the Supreme Court properly amended the caption to designate an individual, who was originally denominated as the respondent to the petitioner on the grounds that the “defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice; see also MacKay v. Johnson, 54 AD3d 428, 863 NYS2d 85 [2008]; and Hoot Croup, Inc. v. Caplan, 9 AD3d 448, 779 NYS2d 922 [2004] finding in a case where the plaintiff properly commenced the action in the Supreme Court, Dutchess County and the summons and complaint incorrectly bore a “County Court, Dutchess County” caption, that this ministerial error provided no basis for disturbing a money judgment granted for plaintiff by way of summary judgment. “Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice” (First Wis. Trust Co. v Hakimian, 237 AD2d 249 [1997]; see CPLR 104, 2001, 2101 [f]; 3025 [c]; 3026). In that case, the defendant failed to demonstrate that he incurred any prejudice as a result of the incorrect caption on the summons and complaint. Indeed, he timely answered the complaint and opposed the motion for summary judgment.

Additionally, the court has evaluated the case of Maximum Physical Therapy, P.C. v. Allstate Ins. Co., 8 Misc 3d 1021(A), 803 NYS2d 19 [NY Civ. Ct., 2005) relied upon by the Plaintiff to declare the above named affidavits a nullity and finds the Plaintiff’s claim without merit. This case stands for the proposition that the affirmation of an attorney without personal knowledge has no probative value and can not expressly raise a triable issue of fact to defeat a motion for summary judgment. In that case, the court found that the affidavit of plaintiff’s corporate officer was also insufficient since “the affidavit fails to indicate the specific sources of his knowledge (e.g. business records or other documents he may have researched or reviewed or persons with whom he consulted) (Barraillier v. City of New York, 12 AD3d 168 [1st Dept. 2004] and contains conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). Mr. Dianalan’s affidavit contains no recitations of fact particular to this action, such as one or more of the following: the specific corporate office held (i.e., president, treasurer, secretary, etc.), the date or dates of service, the services or supplies allegedly provided, date or dates of mailing, or amount outstanding. Rather, Mr. Dianalan’s affidavit contains boilerplate language about the authenticity of non-specified bills and assignment from a non-specified assignor which was witnessed either by him or someone on his staff in his office on an unspecified date (see e.g. Vista Surgical Supplies Inc. v. Utica Mutual Ins. Co., 7 Misc 3d 833 [Civ Ct, Kings County 2005]).”

The court specifically left the technical defects in the affidavit last for consideration. For our purposes here, these irregularities were dictum and not the law of the case. The Court opined that the affidavit of the corporation officer is “defective as to form to the extent of one or more of the following: the affidavit contains no caption, no venue, no opening statement and the signature is not at the bottom of the document, but is on the top of a page isolated by itself, making it appear to the court that was separate and not a part of the body of the document. Each paper used in a case should have a caption which consists of the name of the court and the venue of the action, its title, and, to the right of the title, what the paper is (e.g., affidavit in support of motion, affirmation in support of motion) (see Siegel, NY Practice § 205 at 324 [3d ed]). An affidavit should ordinarily [*5]begin with a recitation of venue (the state, county, and city in which it is made) and contain an opening statement (i.e., “John Smith, being duly sworn, deposes and says”). The signature of the affiant in an affidavit should appear at the bottom of the statement, as opposed to being isolated on the last page, separate and apart from the entire body of the document (see Mellinkoff’s Dictionary of American Legal Usage 17 [1992]). Moreover, to facilitate the clear presentation of the matters set forth in the affidavit, so that, allegations might easily be referenced in subsequent legal papers, the affidavit should contain separate, numbered paragraphs for each factual allegation (see generally Phillips v. Girdich, 408 F3d 124 [2d Cir 2005)].”

In this case, the affirmation of MICHEAL G. NASHAK, ESQ. and MERCEDES ROMERO do contain a caption of the case, albeit, irregular and does not contain the typical formal recitation of the caption. The irregularities in both sworn statements do not render them inadmissible for the purposes of this motion. It is the opinion of this court that although the Judge Lane in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, offered instructive criticism of the procedural abnormalities in Defendant’s papers, his decision did not rely on those procedural irregularities to deny the Plaintiff motion but instead the substantive content of the papers. This pragmatic jurist shall not elevate form over substance; such defects like in the instant case, are of such an inconsequential nature that the CPLR, specifically, §3026 gives broad discretion to this court to ignore them particularly since the Plaintiff has not offered any rationale indicative of prejudice in any manner or form. Accordingly, this court shall ignore these minor procedural infractions and not even offer to amend them for they bears no harmful consequences . As the practice commentaries urge all practioners, the liberal construction of all papers in a court action is intended to discourage useless pleading attacks by placing the burden on the attacker to show prejudice as well as failure of compliance. See, Connors, Practice Commentaries, McKinney’s Cons. Laws of NY, CPLR 3026:4-6.

Continuing on to the substantive elements of the respective supporting affidavits beginning with ERIN SCHABE, the Claim Representative, this court finds sufficient the detailed explanation based on her personal knowledge and job responsibilities of the business practices and procedures implemented by her office on receipt of a bill for medical services by the Defendant. She is the employee that puts the denials in the envelopes and puts the mail in the proper receptacles in the office for pick up by the Post Office, and attests that the mail (denials or verification) to this specific provider were not returned.

The affidavit of JASON FORTIER employed at the Defendant’s office since 2006, bridges any alleged gaps in the mailroom procedures for the insertion of the denial or verification in the envelope by the Claims Representative and/or Adjuster to its travel from that individual’s desk though the office to the mailroom. As the supervisor of the mailroom, this court is persuaded that he has knowledge of the practices and procedures of that department and sufficiently describes the process including the method, time and date that the mail is picked up by the Post Office employees for delivery to the actual Post Office daily. Unlike the affidavit in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, the instant affidavit states the specific sources of his knowledge (he is the supervisor of the mailroom employees) and does not contain conclusory allegations regarding his personal knowledge (Wechsler v. People of State of NY, 13 AD3d 941 [3d Dept. 2004]). He also attests that the business practices were followed in this case and his review of the record of this case [*6]do not support any claim that it was not followed in this instance.

Contrary to the contentions by the Plaintiff, this court need not know the time that the mail was put into the receptacle; the specific time is irrelevant; what is relevant is whether the practice and procedure employed by the Defendant was consistently followed daily at around 4:00 p.m. when the mail (denials/verifications) is deposited in the custody and control of the US Post Office employee that were generated that day by the Claims Representative. Moreover, JASON FORTIER also attests that any mail that is processed after 4:00 p.m. by the Claims Representatives is mailed the following business day. So, there are specific times that the mail goes out each day and the court finds no omission or ambiguity in the mailing procedures of the Defendant.

Since the Defendant has established the method employed for the generation of the denials and the mailing procedures for their office, this Court shall address the EUO requests from the Defendant.

It has been firmly established that an insurer does not have to pay or deny a claim until all demanded verification has been provided. St. Barnabas Hosp. v. American Transit Ins. Co., 57 AD3d 517 ( 2nd Dept., 2008); New York & Presbyterian Hosp. v. Allstate Ins. Co., 31 A.D3d 512 (2nd Dept., 2006). Verification extends the time for the insurer to pay or deny a claim by permitting the insurer to demand and obtain information needed to establish proof of the claim so the insurer can properly determine whether the claim should be paid or denied. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008). Delay letters have been confused with verification and verification is often obscure. In Ocean Diagnostic Imaging P.C. v. Citywide Auto Leasing Inc., 8 Misc 3d 138 (A), 2005 Slip Op 51314[U], the Appellate Term Second Department held that “an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period.” See also the recent matter of Superior Oxygen & Othro Supplies, Ltd. v. Auto One Ins. Co., 2012 NY Slip Op 50348(U).

Unlike the affidavits in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, the affirmation of MICHAEL G. NASHAK, ESQ. and affidavit of MERCEDES ROMERO are inopposite. Not only do they contain sufficient factual claims, they are also based on their personal knowledge of the facts. The sworn statements of both the attorney and the paralegal are not conclusory but describe in sufficient detail the assignment of the cases for the purposes of scheduling and conducting EUO’s. The paralegal, MERCEDES ROMERO, prepares the letter on the dates of the letters, annexed as Exhibits “I”, “J”, “K” and “M”, and has the managing attorney sign the letter(s). She places them in the envelopes and mails them either by regular mail or certified mail, return receipt requested. An examination of each letter reveals that some were sent by regular mail and others by certified mail which contain the certified mail number on the letter. Even if the letter dated August 19, 2009 is not annexed to the motion papers, the exclusion of that letter has no significance because it would be superfluous. Three EUO letters, dated June 3, 2009 (Exhibit “I”), July 30, 2009 (allegedly misdated and should be June 30, 2009) (Exhibit “J”) and July 17, 2009 (Exhibit “K”), had already been mailed to the claimant at four different addresses and then two EUO letters, dated July 29, 2009 (Exhibit “L”) and September 4, 2009 (Exhibit “M”) were sent to her attorney by facsimile and regular mail. [*7]

The Plaintiff never rebuts by admissible evidence, the presumption of receipt of the EUO notices by any affidavit of a person with actual knowledge of the case. In fact, the Plaintiff’s opposition papers contain only an affirmation from the attorney. As the Court of Appeals has firmly held an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts is of no probative value and is insufficient to support an award of summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980];Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, 2d and 11th Jud Dists 2004]; Wisnieski v. Kraft, 242 AD2d 290 [2d Dept 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317 [1st Dept 2002]). Thus, even when the attorney has affirmed that a review of the file and records of his client is the basis of his knowledge, the Appellate Term has consistently determined that it is insufficient to defeat a motion for summary judgment motion. (see Park Health Ctr. v. Green Bus Lines, Inc., 2002 NY Slip Op. 40029[U]) in which the court found that “[t]he defendant’s attorney submitted an opposing affirmation, based on his knowledge which was “obtained from a reading of the files,” wherein he alleged that the NF-2 form was not in the certified mailing and asserted that defendant first received a completed no-fault application on April 10, 1995 was insufficient to defeat summary judgment. In the absence of an affidavit from one with personal knowledge of the facts, the defendant’s attorney’s affirmation is insufficient to establish the existence of a triable issue of fact (Drug Guild Distribs. v 3-9 Drugs, 277 AD2d 197, 715 NYS2d 442). Likewise, in Drug Guild Distribs. v 3-9 Drugs, supra, the Appellate Division held that “an affidavit of [the Defendant] president and an affirmation of counsel, that it never ordered or received these goods, and that the invoices, receipts, and account statement produced by the plaintiff were fraudulent” were insufficient to defeat summary judgment. “The defendant’s conclusory denial of the transactions is insufficient to counter the facts established by the plaintiff’s documentary evidence”. See also Park Health Center v. Green Bus Lines, Inc., (2002, WL 416484, 2002 NY Slip Op. 40029(U).

As the Defendant correctly states in the instant motion, all automobile insurance policies with No-Fault endorsements in our state contain the prescribed language of the Insurance Regulations, specifically, 11 NYCRR 65-1.1 that provides that “[u]pon request by the Company, the eligible injured person or that person’s assignee or representative shall:…(b) as may reasonably be required to submit to examination under oath by any person named by the Company and subscribe same…..” Moreover, 11 NYCRR 65-3.5 ( c) states that “[t]he insurer is entitled to received all items necessary to verify the claim directly from the parties from whom such verification was requested.” Then, lastly, as correctly stated by the Defendant, 11 NYCRR-1 provides in pertinent part as follows: [n]o action shall lie against the Company, unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. In applying these general statutory and policy requirements to this case without the necessity of the numerous cases that have firmly established precedent for the mandatory compliance of provides to respond to EUO requests, the court finds these additional facts.

The Defendant acknowledged receipt of the bills on the following dates: June 26, 2009 (DOS-5/19/2009-5/19/2009 and DOS 5/19/2009-6/15/2009); June 30, 2009 (DOS-5/19/2009-6/22/2009); July 30, 2009 (DOS-6/22/2009-7/15/2009); and July 30, 2009 (DOS-6/23/2009-7/15/2009). The corresponding notices for the EUO to the assignor were on June 3, 2009, June 30, 2009, July 17, 2009; and then to her attorney on July 29, 2009 and September 4, 2009. All of the EUO requests were timely as well as their responding denials. To follow the statute, the Defendant [*8]additional verification on June 3, 2009 for EUO on June 26, 2009, with the follow up request on June 26, 2009 for EUO on July 14, 2009 were sufficient. But the Defendant goes further, the third request for July 17, 2009 for EUO on July 30, 2009. The latter was adjourned by the Plaintiff’s assignor’s attorney so the Defendant send the fourth request dated July 29, 2009 for the EUO for August 19, 2009 and then the fifth request based on the nonappearance of counsel and his claimant, dated September 4, 2009 for EUO for September 10, 2009. A little common sense is sometimes not so common; if the attorney made a request for an adjournment, it stands to reason that his client received the EUO notice. Since he was subsequently notified twice, and he and the claimant did not appear, the Defendant offered more than ample opportunity for compliance with the policy and the law.

Lastly, the court finds that it is not fatal that the affirmation of the Defendant’s attorney did not explicitly state that he was in the office on the date of the no-show for the EUO. He affirmed that the notices were properly mailed and that the assignor failed to appear. The paralegal attests the she awaited the arrival of the claimant and notified the managing attorney and the Defendant of the nonappearance of the claimant at the EUO. Notwithstanding the fact that MERCEDES ROMERO is not employed by the other office where the EUO was scheduled, namely on August 19, 2010 and September 10, 2009, the other EUO no- shows after notice to assignor and then to two additional notices to her attorney, is sufficient to establish that the assignor failed to comply with the insurance regulations and policy. It is glaring to this court that the Plaintiff assignor and her attorney did not appear for five (5) properly and timely scheduled EUO’s and have not proffered even one excuse or explanation for the lack of cooperation with the insurer.

Therefore, in our case, despite the creative arguments in the opposition papers to this summary judgment motion by the attorney for the Plaintiff, they are unavailing and cannot defeat summary judgment by the Defendant. As important, the opposition papers themselves are patently defective. The opposition papers should contain separate, numbered paragraphs for each factual allegation as was noted in Maximum Physical Therapy, P.C. v. Allstate Ins. Co., supra, ironically relied on by the Plaintiff. These opposition papers reminds this court of the old adage “the pot cannot call the kettle black”. Although this court has overlooked this procedural irregularity and addressed the most pertinent of the Plaintiff’s claims, the absence of an affidavit by a person with actual knowledge does not constitute evidence in admissible form and accordingly, has failed to raise any triable issues of fact.

For all of the reasons stated above, the Plaintiff’s motion for summary judgment is denied and the motion by the Defendant for summary judgment is granted in its entirety and the complaint is dismissed with prejudice.

A courtesy copy of this decision and order shall be mailed by this court to the attorneys for the respective parties.

The Defendant shall serve a copy of the Order and Decision with Notice of Entry on the Plaintiff within thirty (30) days of the date of the entry of this Order by the Clerk of the Court and shall file proof of service thereof with the Clerk of the Court.

This constitutes the Decision and Order of this court. [*9]

December 26, 2012

Civil Court of the City of New York, Richmond County

23900/10

Joseph Sparacio Esq.

Counsel for Plaintiff

2555 Richmond Avenue

Staten Island, NY 10314

Richard T. Lau & Associates

Counsel for Defendant

300 Jericho Quadrangle, Ste 260 P.O Box 9040

Jericho, N 11753-9040

Philip S. Straniere, J.

This litigation involves two separate law suits brought by plaintiffs for first-party no-fault benefits provided to defendant State Farm Mutual Automobile Insurance Company’s insured. In the first action (Index No.23900/02), plaintiff, J.R. Dugo, DC, PC, as assignee of Anthony Giambrone, sought payment of $9,600.00 for chiropractic services rendered in the form of manipulation under anesthesia(MUA) to Giambrone. In the second action (Index No.23902/02), plaintiff, J.R. Dugo, Jr., DC, as assignee of Giambrone, sought payment of $7,200.00 for chiropractic services in the form on MUA to Giambrone. As the services by both chiropractors was rendered to the same patient at the same time and place for injuries received in the same motor vehicle accident, the parties agreed that there were common issues of law and fact that warranted trying the cases together. A trial was held on November 27, 2012. All parties were represented by counsel.

Background:

On January 14, 2010, Giambrone was injured in a motor vehicle accident in Staten Island, New York. He was treated at Richmond University Hospital both in the emergency room and as an admitted patient. His primary injury was a fractured right patella. Soft tissue injury to his back was also diagnosed. On January 30, 2010, he was admitted to Staten Island University Hospital for treatment for cardiac problems apparently unrelated to injuries received in the accident. On March 5, 2010, he came under the care of Daniel Wilen, MD, an orthopedic surgeon. At some point Giambrone sought chiropractic and physical therapy treatment. There are no records in evidence from any treating chiropractor or physical therapist and none was reviewed by the peer review chiropractor utilized by the defendant.

Dr. Wilen’s notes indicate that on March 19, 2010 Wilen was made aware that Giambrone had consulted both a physical therapist and chiropractor. The name “Dugo” is listed in those notes for both services. Giambrone underwent diagnostic testing at the hospital on January 14 & 15, 2010 and had MRI’s conducted on April 8, 2010 of the knee and the spine at an MRI facility.

On May 4-5-6, 2010 at Specialty Surgery of Middletown, LLC, in Middletown, New Jersey, the plaintiffs participated in MUA on Giambrone to treat his knee, cervical, thoracic and lumbar spin. On May 6, 2010 and May 27, 2010 Giambrone apparently received epidural injections for continued back pain.

Plaintiffs timely billed for these services. Defendant denied coverage alleging that the MUA was not medically necessary. Although in this case the standard is that the services were “not chiropractically necessary” as chiropractors do not practice medicine in New York [Education Law Article 65]. Part of the problem is that in New York neither the Insurance Law, the regulations of the commissioner, nor the insurance policies themselves define what is meant by “medical necessity.” In Prime Psychological Services, PC v Progressive Casualty Ins. Co., 24 Misc 3d 1244 (A), 2009, the court noted that in New York,

A presumption of medical necessity attaches to a defendant’s admission of the [*2]plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity (citations omitted). Defendant thus bears “both the burden of production and the burden if persuasion with respect to the medical necessity of the treatment or testing for payment is sought” (citations omitted).

Although there have been few decisions elucidating defendant’s exact burden of proof to establish that the services were medically unnecessary, (citation omitted) at the minimum, a defendant must “establish a factual basis and medical rationale for the lack of medical necessity of plaintiff’s services.” (citation omitted). The New York courts “explicitly or implicitly look to generally accepted practice in determining medical necessity. (citation omitted).

In contrast the court in Advanced Rehabilitation LLC v UnitedHealth Group Inc.. 2012 WL 4354782, in discussing whether MUA was a covered service under four healthcare plans the insurance carrier offered, the court outlined some of the criteria to take into account in order to determine if a service was “medically necessary.” Although this litigation was brought under ERISA, and not a “no-fault” law, absent some indication that a different standard is to be applied, the court set out some general criteria to look at when “medical necessity” of a procedure is in question. The court noted medical necessity

generally required treatment to be necessary to meet the patient’s need, (2) not solely for the patient’s convenience, (3) the most appropriate level of service that could safely be supplied (4) supported by national medical standards, and (5) considered by medical literature to be a safe and effective method of treating the patient’s symptoms.

On May 20, 2010, Robert Snitkoff, DC, conducted a peer review in regard to the necessity of the MUA procedure. For some reason his report states he is reviewing services performed only on May 5 & May 6 and not May 4. Presumably this is a typographical error as he indicated both in his report and at trial that the MUA was not necessary.

It should be pointed out that in his report he noted that he was not provided with certain documentation for his review, primarily a comprehensive narrative report from the treating chiropractor and detailed chiropractic progress notes. At trial he admitted that he would have preferred to have had this and some other background information for him to use in preparing his peer review report.

Issue Presented:

Do the Duo of Doctors Dugo Deserve Dollars Due for Diverting Derangement Disorders or Does Defendant’s Denial Definitely Declare the Doings of the Duo of Doctors Dugo Deficient Depriving them of Dough?

1. May Chiropractors Perform MUA in New York?

This court has on more than one prior occasion concluded that chiropractors in [*3]New York cannot perform MUA’s as this procedure is classified as surgery and chiropractors are not permitted to perform surgery in New York. The most recent decision rendered on that issue is Willets Point Chiropractic PC v Allstate Insurance, 36 Misc 3d 1235(A) (2012), 2012 WL 3667433. This prohibition is in place irrespective of the fact that the MUA was performed in New Jersey where chiropractors are permitted to do it and the chiropractors performing the procedure are licensed in both New York and New Jersey, as the insured is covered by a New York insurance policy and New York no-fault law. The court will not restate the findings in that case here but will apply them in full to the facts of this litigation.

As this court has pointed out in several decisions, MUA appears to be the “flavor of the month” in regard to chiropractic treatment with a marked spike in claims for this service being filed and litigated in this and other courts. In many of them the court has had to question whether the alleged benefits of the MUA procedure to reduce “pain” is outweighed by the risks to the patient to undergo the anesthesia necessitated by MUA. I’m not a doctor and don’t even play one on TV, yet common sense asks whether using MUA for this patient was appropriate considering it appears that his hospitalization in late January 2010 was for chest pain and heart related issues.

In fact, it is not a settled question as to whether manipulation under anesthesia is widely accepted in the medical and chiropractic communities so as to allow it to be paid for under various types of insurance policies. Three cases reported since this court decided the Willets Point Chiropractic case in August question whether MUA is an accepted procedure [Advanced Rehabilitation LLC v UnitedHealth Group, Inc., 2012 WL 4354782 (CA 3 NJ); Sanctuary Surgical Centre, Inc. v Connecticut General Life Ins. Co., 2012 WL 5386555 (SD Fla); Ambrose v Coffey, 2012 WL 5398046 (ED Cal)].

2. Is the Peer Review Valid?

What makes this litigation particularly galling is that the defendant has utterly failed to provide a basis for the peer review chiropractor to render an informed opinion. It failed to provide him either with a copy of the treating chiropractor’s narrative or progress notes. Nor is there any evidence of pre-surgical screening by a physician and the result of that screening. The peer review chiropractor even requested this additional information from the defendant’s intermediary and never received it. At the trial he admitted it would be preferable to have had this information, but then testified that he still could render an opinion based on what documents he was given. This is somewhat analogous to the court deciding a case by only reading the defendant’s answer or motion papers rather than the pleadings of both parties.

If these were claims for any other treatment, the court would have to award the plaintiffs their fees as the defendant would have failed to have established the lack of medical necessity for the procedure. The failure to give the peer review health care professional a complete record practically insures that the claim will be denied because it [*4]will be based on incomplete documentation placed before the reviewer, who will have to conclude that the record as reviewed does not support the treatment. This is the “no-fault world” definition of a self-fulfilling prophecy. It would of course be better that the peer reviewers indicate “I can’t render an opinion based on this incomplete record.” But in the real world where these reviewers are being compensated by the person referring the matter for review, too many rejections for incomplete information will inevitably lead to a diminishment of referrals from that source to the reviewer.

What also is troubling about the peer review is that it is supposedly of MUA performed over three days, May 4-5-6 2010. Yet the reviewer starts out that he is reviewing services performed on May 5-6 2010. Is it to be concluded that the first day’s treatment was permitted or is this a typographical error? It also appears that the reviewer was rendering an opinion in regard to all of the charges submitted to the defendant concerning the MUA as he indicates that bills of $4,033.18; $15,571.62; and two for $19,497.44 were included in the information he received. If these figures are accurate, this defendant is being asked to pay for almost $60,000.00 worth of services. Parenthetically, none of those numbers matches with the amount the plaintiffs are seeking as damages. Also, as pointed out below, other than the plaintiffs herein, none of the other claims for payment by the health care providers involved in the MUA are part of this litigation. Neither is there any evidence as to what was defendant’s position on those charges, assuming that the providers submitted bills nor even the status of those claims.

Insurance carrier defendants cannot continue on a regular basis to submit incomplete records to doctors for review and expect that such a submission is acceptable. It is not fair to any party in the litigation nor the court. It deprives the court of the ability to have a full record to review and properly decide the case. The only explanation for this continued behavior is that the amount of money involved, although important to the individuals, is “chump change” for the carriers so there is no motivation to address the situation and actually prepare a file for a legitimate peer review and subsequent litigation.

3. Did the Defendant Have the Obligation to Join Other Claims?

Many things come in “fives.” Dionne babies. Books of Moses. Marx Brothers in Vaudeville. And so do apparently bills for MUA services ^[FN1]. There are at least five separate charges submitted to insurance carriers when a person undergoes MUA- the two chiropractors-one primary the other an assistant, the anesthesiologist, the screening [*5]physician and the facility. Yet for some reason, the insurance companies refuse to either try these cases together or to even provide the court information as to the status of these other claims.

The defendant has all of the injured party’s records and will know what medical providers he visited, when he visited them, what services were performed and what services were paid for or denied coverage. To claim that it is speculative as to what would be contained in those documents, as argued by defendant’s counsel, is ludicrous especially because the defendant is the only party to the action with that knowledge or the ability to obtain the information from its own records. Its failure to provide the information initially as part of the submission to the peer review person, especially after requested, can only be concluded as an attempt to control the outcome of the peer review process so as to justify a denial.

It would seem that this information is readily available to all carriers, including the defendant, by putting some information into a computer and generating a list of providers who filed claims and were paid. On the outside chance that defendant’s records are still kept by hand by eye-shaded workers with #2 Dixon-Ticonderoga Pencils such as at the accounting firm of “Whitehall & Marks” where Leo Bloom worked in the “Producers,” one would still believe the information could have been forwarded to the peer reviewer in a timely manner so as to give some added credibility to his report.

This court in Willets Point, questioned whether MUA cases were ones where there should be permissive joinder under CPLR §1002. In fact, CPLR §1001 may be more appropriate where it says:

(a) Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to an action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.

Clearly a finding by this or any other court in regard to the claim of one of the five participants in the MUA process as to the necessity for the procedure would be binding on participants. It would be inconsistent to find that the anesthesia was medically necessity, but the procedure was not. Or that the facility fee was not covered but the pre-screening was. Therefore, the rights of any provider not participating in the litigation would be “inequitably affected by a judgment” in the action brought by only one of the five providers.

Because each of the five participants is potentially an independent actor, as a plaintiff they would be unaware of whether or not any of the others have filed a claim (the failure of them to have done so being extremely improbable) or whether the carrier had paid or denied the claim. Only the defendant has such knowledge. The defendant would also be the only party who could easily identify if any of the providers whose claim for [*6]MUA related services was denied commenced a civil action and in what court that action was pending. As such, the defendant has the obligation to take affirmative action to have all of the claims arising from the MUA if not joined as parties in one suit, at least consolidated for a joint trial.

The real question is why does the no-fault insurance industry as well as professional associations representing health care providers continue want to tolerate this system? Carriers are undertaking to defend MUA cases where the basic issue of the necessity of the procedure affects all providers on the service in different courts in different counties leading to potentially different results and the appeal of inconsistent verdicts. Health care providers run the risk of discovering that their pending cases are now subject to an adverse decision in litigation brought in another venue in which they failed to have notice or participation.

CONCLUSION:

This case creates an interesting problem. First, this case should be dismissed. Based on the prior rulings of this court, chiropractors cannot collect for MUA services in New York primarily because MUA is classified a surgery and chiropractors cannot perform surgery in New York.

Second, part of the plaintiff’s claim is for manipulation of the patient’s knee. Nowhere in the Education Law, where chiropractic services are defined, is there an authorization for manipulation of a person’s knee . Chiropractors under the statute deal only with the spine. So even if the MUA were otherwise permitted, plaintiffs have not established that they are legally permitted to manipulate knees.

Third, case law holds that chiropractic services under the CPT codes are restricted to 68.4% of the relative value unit allowable for medical doctors [Flatbush Chiropractic, PC v Metlife Auto & Home, 35 Misc 3d 1203(A), (2012)]. Plaintiffs have not established whether the amounts they billed were at the full value or the reduced rate for chiropractic services.

Fourth, a review of the diagnostic tests in evidence reveals degenerative changes and conditions which could be the cause of back pain there is insufficient evidence to link the need for the MUA to the motor vehicle accident which might preclude payment for the procedure through no-fault insurance rather than processing a claim through regular medical insurance. Although MUA through medical insurance coverage would probably entail getting “pre-approval”such as the procedure which exists in the Workers’ Compensation arena, “pre-approval” is a term which is foreign in no-fault world. In fact, it’s the no-fault insurance equivalent of “He-Who-Must-Not-Be-Named” in Harry Potter stories ^[FN2]. This is the case even when requesting the MUA procedure to be performed in a non-emergency situation, such as in this case four months after the accident date. [*7]Sometimes it is easier to explain “Flub-a-dub” to someone who never watched “Howdy Doody” than to understand certain practices in the world of no-fault.

The above being said, in the event that there is an appellate court decision in this case, another MUA case, or a change in the statutes or rules governing chiropractors authorizing the performance of MUA and thereby permitting the plaintiffs to recover for MUA services, the court would have to address whether the plaintiffs would have prevailed had this trial been treated as one for any other covered no-fault first party benefit cases. Examining this case from that viewpoint leads to the conclusion that the plaintiffs would be permitted to recover because the defendant utterly failed to provide the peer reviewer with sufficient documentation to render an opinion as to the medical or chiropractic necessity of the MUA services. The peer reviewer was not provided with the reports or treatment notes from the treating or referring chiropractor as well as other essential documents. The peer reviewer even requested these documents after receiving the file and was not provided them by the defendant. As such, if this were a no-fault case other than MUA, the court would rule in favor of the plaintiffs.

Finally, in MUA cases, the defendant insurance carrier is required to consolidate all claims arising from a particular MUA for a joint trial so as to prevent inconsistent verdicts arising from the same treatment. In those actions which have not as yet been consolidated for trial, the carrier must notify the court as to the status of all of the claims for services provided in connection with the particular MUA and to request a stay of the action so that all the claims can be consolidated for joint trial in one venue. Perhaps this is something which will have to be mandated by a court rule to insure universal and consistent treatment of these MUA claims.

Judgment for defendant. Plaintiffs cause of action in each case is dismissed for the reasons set forth above.

If it turns out that MUA is authorized by an appellate court or statute, then based on the failures of the defendant to prove its case, plaintiff J.R. Dugo in action Index #23900/10 would be entitled to $6,566.40 [68.4% of the $9,600.00 billed] and plaintiff Jack R. Dugo in action Index #23902/10 would be entitled to $5,024.80 [68.4% of the $7,200.00 billed] together with interest, costs, disbursements and attorney’s fees as permitted by statute.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after a receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated: December 26, 2012

Staten Island, NYHon. Philip S. StraniereJudge, Civil Court

ASN byon

Footnotes

Footnote 1:

There are numerous other “fives” such as Jacksons and Dave Clarks , Graves to Cairo, Easy Pieces, Golden Rings, de Mayo celebrations, O’clock shadows, consecutive Yankee World Championships, to name a few. However to include them above would break the “rule of three.” For those of you deficient in vaudeville history the five Marx Brothers are Chico(Leonard), Harpo(Adolph later Arthur), Groucho (Julius), Gummo (Milton), and Zeppo (Herbert).

Footnote 2: Voldemort.

[*1]

Civil Court of the City of New York, Kings County, October 23, 2012

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn, for plaintiff. Law Offices of Teresa M. Spina, Woodbury, for defendant.

{**38 Misc 3d at 269} OPINION OF THE COURT

Katherine A. Levine, J.

This matter^[FN*] was submitted on the unresolved issue of whether interest begins to accrue in no-fault actions at the time of filing or service of the summons and complaint, and whether the tolling of interest provisions contained in the regulations of the Superintendent of Insurance impact this determination. Here, plaintiff failed to commence the lawsuit within 30 days after receipt of defendant’s denial of claim form or payment of benefits, hence triggering the tolling of interest provisions. [*2]

Central to this determination is whether section 412 of the New York City Civil Court Act applies to no-fault actions brought in Civil Court. Section 412, entitled accrual of interest, provides:

“In any action, petition, order to show cause or other proceeding wherein interest accrues from the date of the inception of the action . . . order . . . , said entitlement to interest shall not begin to accrue until service is completed by the actual index number being properly depicted on the summons and provided to the party to be charged with the payment of interest.”

Plaintiff contends that interest accrues on the date of filing. It argues that section 412 is inapplicable because under the No-Fault Law, interest does not accrue from the “inception of the action”—i.e., when plaintiff files the summons and complaint in court—but rather 30 days after the claim or bill is submitted to the insurer. Furthermore, plaintiff contends that the tolling of interest provision removes no-fault actions from the ambit of section 412. Alternatively, plaintiff contends that the CCA is inapplicable because the provisions of the CPLR governing interest supercede the interest provisions contained in the Insurance Law and regulations.

Defendant argues that section 412 governs this matter because interest does accrue at the inception of the action, and that the date of service should trigger the accrual of interest. Defendant further argues that providers should not be allowed to obtain a windfall of interest by prolonging the time between the filing and service dates.{**38 Misc 3d at 270}

It is well established that the CPLR provisions governing interest are inapplicable to no-fault actions since Insurance Law § 5106 and the regulations promulgated thereto “supercede” the interest provisions contained in the CPLR. (Matter of Government Empls. Ins. Co. [Lombino], 57 AD2d 957, 959 [2d Dept 1977]; see Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc 3d 8, 10 [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2011].)

Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (a) mandate that “[first-party no-fault] benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (emphasis added), at which point interest shall accumulate at the rate of 2% per month on all overdue benefits. However, pursuant to 11 NYCRR 65-3.9 (c), if the plaintiff fails to request arbitration or commence an action “within 30 days after the receipt of a denial of claim form or payment of benefits . . . , interest shall not accumulate on the disputed claim or element of claim until such action is taken.” Furthermore, if a dispute has been submitted to arbitration or to the courts, “interest shall accumulate, unless the applicant unreasonably delays . . . the court proceeding.” (11 NYCRR 65-3.9 [d].)

The statutory and regulatory language therefore provides two points at which interest may start to accrue on a claim submitted by a medical services provider. If the provider commences a no-fault action within 30 days after the receipt of a denial of claim form, interest will start running on the date that the claim is overdue—30 days after the claim is presented to the defendant for payment until the claim is paid. (See LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; Corona Hgts. Med., 32 Misc 3d at 9.) Where the defendant has not [*3]established the proper mailing of the denial of claim form, the claim is considered not to have been denied, payment of benefits is considered overdue, and interest on the claim will commence “30 days after the claim was presented to the defendant for payment” until the claim is paid. (Corona Hgts. Med., 32 Misc 3d at 10.) However, where the provider fails to commence the lawsuit within 30 days after receipt of the denial form, whether the denial is timely or not, interest is tolled until the commencement of the lawsuit. (LMK Psychological, 12 NY3d at 223.)

This court rules that either scenario falls within the scope of CCA 412. Professor David D. Siegel asserts that one of the major{**38 Misc 3d at 271} impetuses behind the promulgation of chapter 452 of the Laws of 2005, which amended sections 400 and 409 of the CCA to make commencement by filing applicable to the civil courts and added section 412, were abuses in the no-fault system. (See 164 Siegel’s Practice Review, Basic Change in Practice in Civil, District, and City Courts: “Filing” System Adopted; Summons Service No Longer Deemed “Commencement” at 1 [Aug. 2005]; 165 Siegel’s Practice Review, Reason for Insurance Law No-Fault Amendments Made as Part of Chapter 452 at 4 [Sept. 2005].) Under the old commencement by service system, no-fault providers would serve hundreds of summons and complaints without ever obtaining index numbers or filing the summons and proof of service in the clerk’s office. “This meant that the clerk’s office had nothing whatever in its files to indicate that the case was there,” and the civil court lost revenue by not collecting filing fees. (165 Siegel’s Practice Review, Calendar Crushing No-Fault Cases: Part of the Spur for Chapter 452 at 2 [Sept. 2005]; 165 Siegel’s Practice Review, Does “Bunching” of No-Fault Medical Claims Violate Rules About Permissive Joinder? at 3 [Sept. 2005].) Thus, under section 412, a medical service provider is entitled to interest only after “service is completed by the actual index number being properly depicted on the summons.” (165 Siegel’s Practice Review, The New § 412, on the Accrual of Interest at 1 [Sept. 2005].)

Professor Siegel also asserts that 11 NYCRR 65-3.9 served as the model for the legislature’s language in section 412 making the commencement of the action the point at which interest starts accruing. (165 Siegel’s Practice Review, The New § 412, on the Accrual of Interest at 1 [Sept. 2005].) The staff of the civil court, according to Siegel, “pinpointed the claim the legislature had in mind with the insertion . . . of § 412.” They found “an insurance department regulation . . . that makes the inception of the action the starting time of interest.” (Id.) The tolling provision contained in 11 NYCRR 65-3.9 (c) does not take no-fault actions outside the ambit of section 412. Section 412 merely requires that once the action is commenced by filing, the plaintiff must complete service by providing to the party charged with the payment of interest a summons with the actual index number being properly depicted upon it before interest can start accruing. This requirement merely ensures that the chaos and lack of notice which existed prior to the amendment of CCA 400 and 409 do not resurface.

Furthermore, the tenets of statutory construction mandate that the court review section 412 in light of the mischief sought{**38 Misc 3d at 272} to be remedied by the new legislation and to construe it in such a fashion as will suppress the evil and advance the remedy. (McKinney’s Cons Laws of NY, Book 1, Statutes § 95; see Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675 [3d Dept 1981].) Similarly, all parts of a statute are to be read and construed together in order to determine the legislative intent. Statutory words must be read in their context and words of a section should be interpreted with reference to the entire scheme. (Statutes § 97; see Matter of Jude F., 291 AD2d 165, 170 [2d Dept 2002].) [*4]

The “core objective” of the no-fault automobile insurance system was “to provide a tightly timed process of claim, disputation and payment.” (LMK Psychological Servs., P.C. at 222, citing Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 [2007].) Therefore, an insurer’s failure to pay or deny a claim within the requisite time period of 30 days “carries significant consequences, including the payment of attorneys’ fees and interest.” (LMK Psychological, 12 NY3d at 222.)

Plaintiffs are under a similar duty to proceed expeditiously. “[T]o do otherwise would reward a recalcitrant plaintiff with a windfall of punitive interest payments, and would contravene the legislative goal of promptly resolving no-fault claims.” (Arzu v NYC Tr. Auth., 35 Misc 3d 210, 212 [Civ Ct, Kings County 2012]; Devonshire Surgical Facility v American Tr. Ins. Co., 31 Misc 3d 1221[A], 2011 NY Slip Op 50793[U] [Civ Ct, NY County 2011].) The Superintendent of Insurance has interpreted the tolling of interest provision contained in subdivision (c) to apply, regardless of whether the particular denial at issue was untimely, so as to encourage applicants to swiftly seek to resolve any dispute (LMK Psychological Servs., 12 NY3d at 223-224; see also Canarsie Med. Health, P.C. v National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 [Sup Ct, NY County 2008] [11 NYCRR 65-3.9 contains a “built-in protection against potential delay by providing that where an applicant chooses not to timely press forward to seek redress for a denial, there will be no interest penalty assessed against the insurer until such time as the applicant chooses a remedy. This is in keeping with the intent of the No-Fault Law as a whole because it seeks to encourage the parties moving forward toward a quick resolution, while not economically favoring one side or the other”]).

CCA 412’s mandate that interest commence accruing upon service similarly serves as an incentive for plaintiff to promptly{**38 Misc 3d at 273} pursue and resolve no-fault claims. It is to the plaintiff’s benefit to serve the summons and complaint as quickly as possible after filing the case in court so as to start accruing interest. These same goals are fulfilled by the tolling provision, which acts as an incentive for the provider to rapidly commence the lawsuit, even where it has failed to initiate the action within 30 days of receipt of the denial.

Since plaintiff waited over 30 days after it received a denial to initiate a no-fault action, interest shall commence accruing on the date that service of the summons and complaint was completed in accordance with CCA 412.

Footnotes

Footnote *: A number of other cases were submitted by the same parties on this exact issue. In all cases the defendant has conceded that plaintiff is entitled to judgment.

Civil Court of the City of New York, Richmond County

017113/11

Philip S. Straniere, J.

Your toe bone connected to your foot bone,

Your foot bone connected to your ankle bone,

Your ankle bone connected to your leg bone,

Your leg bone connected to your knee bone,

Your knee bone connected to your thigh bone,

Your thigh bone connected to your hip bone,

Your hip bone connected to your back bone,

Your back bone connected to your shoulder bone,

Your shoulder bone connected to your neck bone,

Your neck bone connected to your head bone,

I hear the word of the Lord!^[FN1] [*2]

Plaintiff, Willets Point Chiropractic, PC (Willets)assignee of Mirna Flores (Index No. 17113/11) and plaintiff, Richard Grosso, DC, PC (Grosso) assignee of Mirna Flores (Index # 17119/11) each commenced an action against Allstate Insurance Company seeking to be compensated for professional chiropractic services rendered to Mirna Flores in the form of “manipulation under anesthesia” (MUA) which was denied by defendant Allstate as neither medically nor chiropractically necessary.

It is stipulated that the plaintiffs timely and in proper form submitted their respective bills for service and that the defendant timely and in proper form denied their respective applications. Defendant’s denial was based on an independent chiropractic examination (ICE) report of Chester Bogdan DC (Bogdan), dated August 5, 2010, in which he concluded that no further chiropractic treatment was chiropractically necessary. The MUA services rendered herein were performed almost one year later, in July 2011.

A trial was commenced on June 13, 2012 and concluded on June 26, 2012. Both sides were represented by counsel. The parties had stipulated that both actions for chiropractic services rendered during the MUA could be joined together for trial as they involved common issues of law and fact. It was also conceded that neither side had information as to whether payment to the pre-screening physician, the anesthesiologist and facility involved in the MUA had been either made or denied by Allstate. Nor was there any evidence presented as to whether the plaintiffs commenced actions seeking payment for regular chiropractic services rendered to Flores after the August 2010 Bogdan report.

TREATMENT HISTORY:

The patient, Mirna Lopez-Flores was injured in an automobile accident on May 9, 2010. She did not go immediately to the hospital, but later that same day went to the emergency room at Winthrop Hospital where she was examined, X-rayed, had a CT scan and was released. She came under the care of Richard Grosso, DC, chiropractor, an orthopedist, Dov Berkowitz, MD and Eric Jacobson, MD, a specialist in Physical Medicine and Rehabilitation. She was initially receiving chiropractic treatment five times a week, which apparently was commenced on or about May 19, 2010 and which was later reduced to three times a week. In addition Flores was going to physical therapy three times a week.

At the time of the peer review on August 5, 2010, Flores was still receiving chiropractic treatment and physical therapy three times a week. Dr. Berkowitz had recommended her for three MRI exams.

On June 19, 2010, she underwent MRI’s of both her cervical and lumbar spine. The radiologist rendered an impression of “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally.” The cervical MRI came back negative.

On June 22, 2010, Flores had an MRI of her right shoulder. The radiologist’s impression was “findings consistent with an intrasubstance tear of the subscapularis muscle. Subacromial-[*3]subdeltoid bursitis.”

On August 5, 2010, Bogdan, DC conducted an ICE of Flores and concluded that no further chiropractic treatment was required. In spite of the denial, Flores continued to receive chiropractic treatment. It is unclear whether these treatments were performed by plaintiff Grosso or by plaintiff Willets where Grosso is the chief executive officer according to the Department of State, Division of Corporations records, as the progress notes and “SOAP” notes don’t have any letterhead or its equivalent but appear to be signed or initialed by Grosso.

On July 16, July 23, and July 30, 2011 plaintiffs performed MUA’s on Flores at a facility at the New Horizon Surgical Center in Paterson, New Jersey. Each plaintiff billed defendant $1,641.92 for each of the three treatments and each seeks to be compensated in the sum of $4,925.76 for their services. It should be noted this does not include a fee from the facility, the pre-screening physician or the anesthesiologist.

Bogdan rendered his opinion after conducting his chiropractic examination but did so without being provided with any records from the treating chiropractor by the defendant. Bogdan indicated that he did not need the treating chiropractor’s notes in order to render his own opinion based on a chiropractic exam ^[FN2].

There was another issue raised in regard to Bogdan. He admittedly is not certified to perform MUA and therefore cannot give an opinion as to the necessity of that particular procedure. However, Allstate’s and Bogdan’s position is that he was opining only as to the need for further chiropractic service after August 2010 and did not have to deal with the issue of MUA because there was no need for any additional chiropractic services as Flores’ conditions had resolved and she had reached maximum benefit from her treatments, let alone her requiring the MUA performed almost one year later in July 2011. The court agrees that the threshold issue was extension of chiropractic treatment after the ICE date and that the MUA is being viewed as part of the overall chiropractic treatment Flores received. [*4]

Plaintiffs have several burdens in these cases. First, establishing that additional chiropractic services were needed after the date of Bogdan’s ICE. Second, that the injuries that necessitated the MUA were causally related to the automobile accident of May 2010. Third, that MUA is a recognized treatment for Flores’ injuries. The credible evidence is that the plaintiffs have not met their burden in those regards and have not successfully rebutted defendant’s decision to terminate treatment.

Issues Presented:

A. Are Chiropractors Permitted to Perform MUA?

Before addressing the above issues particular to these claims, it is necessary to determine if chiropractors may perform MUA. This court is concerned by the growing number of no-fault claims for MUA which seem to be proliferating over the last year or so in the court system. Several carriers refuse to recognize MUA as a compensable treatment option under no-fault or other health related insurance policies. In fact there is debate in the medical and chiropractic communities as to the effectiveness of MUA as a treatment.

In this vein, it should be noted that in all of the MUA trials presided over by this judge, no litigant has ever presented any independent study supporting the effectiveness or need for this treatment or establishing that the patient who received MUA had a condition which was made appreciably better after the MUA rather than if only conservative chiropractic treatment had been continued or some other modality employed.

Are there any studies showing what is the status of the patient six months or a year after MUA? None has been presented to this court. No one has answered the question whether the reason patients are not seen again by chiropractors after undergoing MUA is that insurance coverage has run out rather than they are better and no longer need treatment. And because the patients for whom MUA is recommended by definition do not tolerate “pain” well, is there any study examining whether they “feel” better and have “greater” range of motion because they think the procedure works rather than it actually did anything physically to them to ease their pain and increase mobility? It would seem that because pain is subjective and these patients are by definition not tolerant of pain, this would be something an independent academic or health care professional institution would have studied. But as noted above, no such independent studies have been presented to this court.

A quick on-line search disclosed that most of the “success” reports are self-serving statements from the persons who practice MUA and who recommend the treatment and not by unaffiliated peer review process. Is MUA an accepted medical/chiropractic procedure or is it “junk” medicine/chiropractic? This court is not convinced that this issue has been resolved so as to warrant the seemingly sky-rocketing use of this procedure in no-fault insurance situations.

Finally, MUA appears to be a procedure whereby a chiropractor who has been unsuccessful treating the patient with conservative treatment recommends that the patient [*5]undergo MUA to be performed by the same chiropractor. Rarely, if ever, is a second opinion obtained before this “surgical” procedure is undertaken.

There have been several published decisions in regard to MUA and an apparent acceptance that MUA is a recognized treatment option for chiropractic patients and subject to being compensated for under a no-fault insurance policy [Flatbush Chiropractic PC v Metlife Auto & Home, 35 Misc 3d 1023(A), (2012); Kraft v State Farm Mutual, 34 Misc 3d 376 (2011); Giugliano v Merchants Mutual, 29 Misc 3d 367 (2010)].

The common theme for approval of payment on these claims is that the Workers’ Compensation Fee Schedule allows it. No-fault insurance claims do not have there own fee schedules and health service providers are compensated under workers’ compensation codes [Insurance Law §5108]. As noted in Giugliano, the Workers’ Compensation Fee Schedule (WCFS) contains a category for “Anesthesia, Surgery, Radiology, Pathology & Laboratory, Medicine and Physical Medicine”-parenthetically all health related procedures which a chiropractor is not licensed to perform- as well as a separate “Chiropractic” fee schedule. The courts in those cases allowing compensation have reasoned because chiropractors by the statutory definition of their profession can perform “manipulations” they may perform “manipulations under anesthesia” [emphasis added] so long as the anesthesia is administered by an anesthesiologist or some other authorized medical professional. The protocol for MUA also has a requirement that a medical doctor examine the patient and approve of the procedure and that it be performed at a surgical center or its equivalent, thereby somehow further legitimatizing the chiropractic MUA.

The conclusions in these cases have been reached even though the chiropractors performing the MUA bill their services for the procedure under the WCFS as “surgery.” Routinely these bills are submitted with the designation for the procedures as being under CPT Code 22505 “manipulation of spine requiring anesthesia, any region.” In the current cases Code 27194 was also used by the plaintiffs. This code is used for closed fractures and is designated for the hip and pelvic area. It is described as “treatment of pelvic ring fracture, dislocation, diastasis or subluxation; with manipulation, requiring more than local anesthesia.” There is no equivalent CPT Code for chiropractic performance of MUA under the Chiropractic Schedule. Why this code was used by plaintiffs for an alleged shoulder injury is curious or else there was no apparent billing for the shoulder manipulations.

Rather than reaching the conclusion that chiropractors cannot do these procedures, some Workers’ Compensation Board judges and the court decisions which have addressed this issue, concluded that MUA was allowed because it was “manipulation,” which chiropractors can, by licensing, perform. These cases also refer to a State Education Department letter dated September 18, 2007 which allegedly concluded that the Education Law does not prohibit a chiropractor from performing MUA. None of these cases concluded that this letter permitted the practice only that it was not prohibited. Although neither side submitted a copy of this “letter,” the court was able to obtain one. And as Billy Flynn notes in the musical “Chicago” concerning the identity of [*6]“Mary Sunshine”, “things often aren’t what they seem.”

The letter in question is actually dated September 13, 2007 and not September 18, 2007. It is on letterhead from the State Board of Chiropractors and signed by the Executive Secretary. It is not addressed to anyone in particular but has the salutation “To Whom It May Concern” which in and of itself is a curious way to address a document which by its contents is apparently authorizing chiropractors to perform MUA a procedure not specifically granted in the licensing statute. It starts “I write in response to your inquiry regarding chiropractic manipulation under anesthesia” yet does not indicate who made the request.

Analysis of the contents of the letter discloses rather than an outright endorsement of chiropractic MUA it is more akin to the wedding scene in “Fiddler On The Roof” when Tevye asks the Rabbi if men and women are permitted to dance together.

Tevye:Well, Rabbi?

Rabbi:Dancing…Well it’s not exactly forbidden, but….

Tevye:There you see? It’s not forbidden.

At which point the men and women break “tradition” and begin dancing together leaving the question unresolved.

When the entire letter is read, it is clear that all it does is say that as written the Education Law does not prohibit MUA, it does not indicate that it is specifically permitted. There is no discussion of the issue of whether or not the procedure is “surgery” and whether chiropractors may perform surgery. In fact, the language of the letter emphasizes the word “may” in regard to MUA and then sets forth limiting parameters and caveats as to its use. It says:

While the practice act does not specifically prohibit a chiropractor from performing spinal manipulation on patients who are under anesthesia, this type of procedure may present special risks and a practitioner should carefully evaluate such use. Furthermore, the chiropractor is not authorized to order or administer anesthesia.

Every chiropractor licensed in New York State must be competent to perform any procedure that they provide by virtue of education or training. Also, the procedure must be warranted by the condition of the patient and, thus, does not constitute excessive treatment, which would be a violation of Part 29 of the Regents Rules on Unprofessional Conduct.

I would note that while it may be permissible in New York State for chiropractors to perform manipulations on patients under anesthesia, gaining hospital privileges and obtaining physicians willing to prescribe and administer anesthesia for this purpose must be addressed.

As pointed out later in this decision, there is nothing in the Education Law which permits the executive secretary to expand the statutory description of the areas of practice of a particular profession. The letter is neither an “opinion of counsel” nor does it indicate that the opinion is [*7]that of the State Board of Chiropractic.

Education Law §6551(1) defines the practice of chiropractic.

(A)s detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

Nothing in this section permits a chiropractor to conduct a surgical procedure ^[FN3] nor apparently, is “surgery” specifically prohibited to a chiropractor by Education Law §6551(3) other than a prohibition to treating “any surgical condition of the abdomen.” As difficult as it is to believe, there apparently is no New York statute defining “surgery.” Considering barbers at one time performed surgery, hence the red in a classic barber pole, you would think New York would want to define that term. Because it is undefined perhaps chiropractors have the same privilege as barbers.

Stedman’s Medical Dictionary, 27th Edition, defines “surgery” as “1. The branch of medicine concerned with the treatment of disease, injury, and deformity by physical operation or manipulation. 2. The performance or procedures of an operation.”

Stedman’s defines “medicine” as “2. The art of preventing or curing disease; the science concerned with disease in all its relations. 3. The study and treatment of general diseases or those affecting the internal parts of the body, especially those not usually requiring surgical intervention.”

Applying the Stedman’s definition of “surgery” to that of chiropractic in the Education Law, leads to the conclusion that chiropractors cannot practice surgery because they are not engaged in the practice of “medicine.” In New York chiropractic care is not considered “medicine” neither is a chiropractor a “physician.”Although chiropractors engage in “manipulation,” they do not treat “disease, injury or deformity.” Nor can they “operate” [Education Law §6551(3)]. The Education Law §6520 defines the “practice of medicine” as “diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition.” Chiropractors are not permitted to do any of these things. Does MUA cross the line between “correcting” and “treating?”

It is clear then, that if MUA is a form of surgery, which the CPT Code labels it as such, chiropractors are prohibited from engaging in it. If MUA is not a form of surgery, then why is not it included under the Chiropractic CPT Code? [*8]

Can the court and the Workers’ Compensation Board judges rely on an Education Department letter as a basis for permitting this practice? A review of the Education Law does not disclose any authority for the Board of Regents to expand the practice of a profession beyond that set forth by the legislature in the statute. Education Law §6504 states:

Regulation of the professions.

Admission to the practice of the professions (licensing) and regulation of such practice shall be supervised by the board of regents…and administered by the education department, assisted by a state board for each profession….

Education Law §6506 gives the board of regents the authority to “supervise the admission to and the practice of the professions.” Education Law §6507 grants the authority to administer the admission and practice of the professions to the state education department and to promulgate regulations [Education Law §6507(2)(a)]. State boards for each profession are established by Education Law §6508 for the purpose of assisting the board of regents and the education department on “matters of licensing, practice and conduct.” The board may conduct and grade examinations, assist in other licensing matters [Education Law §6508(2)], and conduct disciplinary proceedings [Education Law§6508(3)].

When taken together it is apparent that these bodies are charged with regulating professions which include both medicine and chiropractic. But there is nothing in the statute that gives these entities the authority to expand the scope of a defined practice beyond that which the legislature has set forth. If the general consensus is that chiropractors should perform MUA then the statute should be changed to include MUA and not by a letter which does not even have the authority of an “opinion of counsel” or the imprimatur of the Board of Regents or the State Board of Chiropractic. As has been done in the past, when new treatment techniques and diagnostic tools have evolved the legislature has so acted. This is evidenced by the legislative history of the chiropractic statutes. It behooves the chiropractic profession to amend the statute because if chiropractors are performing MUA when they are not authorized to do so under the statute, it would be “professional misconduct” under Education Law §6509(2).

This issue of whether MUA is a surgical procedure and therefore the practice of medicine was recently litigated in Texas [Texas Board of Chiropractic Examiners v Texas Medical Association, ___SW3d___, 2012 WL 2742554, 7/16/12]. Unlike New York, Texas specifically defines a surgical procedure and prohibits chiropractors from engaging in surgical procedures [Texas Occupational Code §201.002 (a)(4) and §201.002( c)(1)]. In fact, the Texas statute in describing what is included in a “surgical procedure” refers to those “procedures included in the surgery section of the common procedures coding system as adopted by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services.” The Texas Court of Appeals ruled MUA is in fact a surgical procedure under those codes and cannot be performed by chiropractors.

Presumably MUA in Texas is performed in the same manner as in New York, so how can it be “surgery” in Texas and not “surgery” in New York. Is there a difference merely because [*9]when no-fault MUA is performed in New York it is billed under Workers’ Compensation CPT schedules while Texas uses Medicare/Medicaid CPT schedules promulgated by the federal government? That would make sense if each state was describing two different procedures. The MUA procedure is the same so it cannot be more than one classification.

For instance if you are asked “What’s big, grey, weighs over a ton and has a trunk in front?” the answer can be either an elephant or a Volkswagen Beetle. But in that case the description fits two different things. If you throw in an engine, there is only one possible answer ^[FN4]. Here there is agreement as to what is meant by MUA. The question becomes whether it is really surgery. To allow MUA by chiropractors would mean that the entities that code MUA as “surgery” are wrong in their classification of the procedure and that it should be reclassified. If it is not “surgery” then why is it performed at “surgical centers?”

If MUA is surgery, then chiropractors cannot perform it because surgery can only be performed by practitioners of medicine and that does not include chiropractors. This is not to say that chiropractors do not have the skill and training to perform MUA, it is that there is a gap in the legislation that created the parameters of the chiropractic profession. It is the function of the legislature to correct the problem and not for the courts to expand the definition beyond the plain language of the statute.

B. Can chiropractors manipulate parts of the body other than the vertebral column?

Assuming that chiropractors are permitted to perform MUA, to what extent can they manipulate parts of the body other than the vertebral column? This court has been confronted with claims by chiropractors for manipulation of not only the spine but of other parts of the body.

In this case, according to the three procedure reports the plaintiffs prepared, they performed MUA on the cervical spine, the thoracic spine, the lumbopelvic spine(which included some hip manipulation) and the shoulders of Flores. The cases that have approved these extra-spinal manipulations have focused on the language in the Education Law describing chiropractic as able to treat “structural imbalance, distortion or subluxations in the human body” as permitting such treatments. The problem with this interpretation is that it ignores the plain language of the rest of the statute that the purpose must be the “removing of nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.”

Taking the broadest interpretation of this statute, which some courts apparently have done, then a chiropractor could conceivably treat all of the parts of the body in “Dem Bones” because nerves reach each of them and those nerves are connected to the spine. So a chiropractor could manipulate the toes because the nerves in those appendages hurt? [*10]

However, the language of the statute makes it clear that the treatment has to arise from a “distortion, misalignment or subluxation of or in the vertebral column” and not a problem in another area of the body not generated from the spine. The problem must originate in the spinal column and not vice versa. A strict reading of the statute permits the chiropractor to manipulate the spinal column to relieve pain in another area of the body. They cannot by the statute manipulate the other area to relieve the pain in that area. Again we are back at the difference between “treatment” and “correction.” If this is something chiropractors are trained to do, then the statute has to be changed.

In the no-fault setting this means that the non-spinal area which is being treated must not only have “nerve interference” but that nerve interference must be related to the automobile accident. The plaintiff herein, as have other chiropractors, testified that the manipulation is necessary to break down fibrous adhesions and scar tissue which the patient developed. The cases supporting the procedure cite a Workers’ Compensation Board case [Aramak, 2009 WL 456874 (NY Work. Comp. Bd)] as permitting chiropractors to perform these procedures [See also Solomon Schechter Day School , 2006 WL 3889159 (NY Work. Comp. Bd.]. Aramak rested its conclusion on the representation that the chiropractor was only going to perform manipulation to break-up fibrous adhesions and scar tissue formed around the spine and not in other areas of the body, so its applicability to more extensive manipulation must be questioned.

These holdings are interesting in view of the fact that they appear to be an expansion of chiropractic care beyond the words of the governing regulations concerning Workers’ Compensation claims.

Limitations of chiropractic treatment.

(a) When care is required for a compensable injury, an injured employee may select to treat him or her any duly registered and licensed chiropractor authorized by the chair to render chiropractic care only if said injury consists solely of a condition which may lawfully be treated by a chiropractor as defined in section 6551 of the Education Law. If the injury does not consist of a condition which may lawfully be treated by a chiropractor or consists of multiple conditions, any one of which is outside the limits prescribed by the Education Law for chiropractic treatment, the chiropractor may not initially treat such employee for any condition but must so advise the injured employee and instruct him or her to consult a physician of the employee’s choice for appropriate care and treatment. Such physician shall supervise the treatment of said condition, including the future treatment to be administered to the patient by the chiropractor. [12 NYCRR §346.1].

Based on this regulation to be an authorized treatment for Workers’ Compensation purposes, the plaintiff would have to establish that the patient’s condition can only be treated by a chiropractor and that the MUA was the appropriate treatment. Although this is a no-fault case, the compensation is made pursuant to the Workers’ Compensation CPT Code. As there is neither a chiropractic nor a separate no-fault code for MUA, and payment is made under the Workers’ Compensation code, then the standard to be applied to authorize treatment must be the same as in Workers’ Compensation. The plaintiffs have not shown that the patient’s injury could not and [*11]should not have been treated by a physician such as an orthopedist or neurologist, or to a lesser degree by a physical therapist rather than by MUA.

But again, this interpretation gets back to the same problem, what exactly does the Education Law §6551 permit a chiropractor to do.

A review of the treatment records and the testimony, establish that there is an utter failure to prove that the condition Flores complained of was related to the motor vehicle accident. Flores’ complaints were of pain in the lower back, neck and right shoulder. There was no complaint concerning the thoracic area of her spine, yet plaintiff felt the need to perform MUA in that area. There was no MRI done of the thoracic spine. The MRI of the cervical spine showed no injury whatsoever, in fact, it was a “normal examination,” so what was the need for MUA of either the cervical or thoracic area?

The patient’s complaint in regard to her shoulder was only of injury to her “right” shoulder. So why was it necessary to perform MUA on both shoulders? In fact, the MRI which was taken of the right shoulder only and it revealed “an intrasubstance tear of the subscapularis muscle” and “subacromial-subdeltoid bursitis.” Plaintiff cannot explain how MUA is the proper treatment for a tear of a shoulder muscle and bursitis and where a chiropractor has the authority to treat an injury of that nature. It is unclear under which billing code the MUA of the shoulder was submitted to the defendant as it was not listed on plaintiffs’ claim forms. There is nothing in the record, nor did plaintiff’s trial testimony, show how manipulation of the spine or of the shoulders would relieve nerve interference in the vertebral column affecting the shoulders.

The MRI of the lumbosacral spine revealed “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally.” When the court questioned the plaintiff as to the appropriateness of performing MUA on someone with disc herniations, the witness responded there is no danger if you know what you are doing. He produced no accepted professional studies that supported his conclusion. In fact, if the Education Department letter stands for anything, it warns chiropractors not to be undertaking MUA if there is some inherent risk to the patient beyond regular chiropractic manipulation.

Also, there is no indication that the plaintiffs ever received a copy of any of the MRI reports as they are addressed to Dr. Berkowitz with a copy to Dr. Jacobson, both medical doctors. Did the plaintiffs even have a copy of the reports when they did the MUA’s? There is a question as to whether the plaintiffs as chiropractors are trained or permitted to read MRI’s and diagnostic tests other than X-rays. The Education Law §6551 only discusses X-rays in regard to chiropractors and their training. Does New York permit chiropractors to be certified to read MRI’s and other more modern diagnostic tools? The plaintiffs are licenced in New Jersey and performed the MUA there where the New Jersey statute does recognize that chiropractor’s use other diagnostic tests besides X-rays. If the plaintiffs did not receive the actual MRI’s to view even if they got copies of the reports, how could they seriously consider performing the MUA on a patient with a disc herniation? And if they did have the actual MRI’s they have to establish they [*12]have the training to read the MRI’s,

Again, this is not to say that the plaintiffs and other chiropractors are not qualified to perform MUA assuming that is a recognized treatment, it is that New York does not currently allow them to do it.

Finally, plaintiff has failed to explain why it billed defendant using CPT Code 27194 which is for closed fractures in the hip and pelvic area and performed MUA in that area when there is no record of any complaint or injury in that area by the patient.

Based on the MRI and other reports, it is difficult to conclude exactly what are the “structural imbalance, distortion and subluxations” that Flores suffered from that the plaintiffs sought to correct by the MUA?

This position of the plaintiffs that the MUA was safe may have been acceptable if the plaintiff had any proof that a physician had examined the patient and approved the MUA procedure for her. No such report was presented at trial nor do the records submitted by the plaintiff even reveal the name of that physician. None of the three procedure reports prepared by the plaintiffs disclose the clearing physician’s name. In fact the MUA report for the third day of procedure, July 30, 2011 lacks even the name of the anesthesiologist.

Also, missing from the plaintiff’s submissions is a consent form signed by the patient. As this is a “surgical” procedure requiring the use of anesthesia, it would seem that such a document is required. Because the MUA was performed on three different dates each a week apart, an argument could be made that a consent form was needed for each procedure.

Pubic Health Law §2805-d provides:

Limitations of medical, dental or podiatric malpractice action based on lack of informed consent

1. Lack of informed consent means the failure of the person providing professionaltreatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.

2. The right of action to recover for medical, dental or podiatric malpractice based on lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

Although the case at bar is not a malpractice action, the language of the statute may be helpful in resolving the issue of how to treat chiropractic MUA. As is obvious from the statute, chiropractors are not specifically mentioned. Does this mean that they are not required to obtain [*13]an “informed consent” from a patient? After all Education Law §6551 does not use the terms “treatment or diagnosis” in describing chiropractic. These terms are reserved for the practice of medicine (Education Law §6521). Or is this another situation where “medical” malpractice is being given an interpretation beyond the language of the Education Law and is being used to refer to all health treatment by professionals other than those performed by dentists and podiatrists?

If it is concluded that chiropractors are not subject to obtaining informed consent from a patient, then can it also be concluded that they cannot perform “surgery” because informed consent is required for non-emergency surgery under the Public Health Law and MUA is considered a non-emergency surgical procedure under the Workers’ Compensation codes.

In addition to all of the problems analyzed above, plaintiff failed to explain how the accident caused scar tissue or fibrous adhesions to develop which required the MUA and that the patient’s complaints were not related to her general physical condition ( 40 years old, 5’3″ and 163 lbs.) or her job (medical assistant). If not related to the accident than some other source other than the no-fault carrier should pay for the services.

Plaintiff testified that Flores met the criteria for MUA established by the National Academy of Manipulation Under Anesthesia Physicians and went through the eight listed items a practitioner of MUA should check before recommending MUA to a patient. Plaintiff testified that Flores met the first seven criteria. The plaintiff indicated that the National Academy also set forth eight diagnoses that are “responsive to MUA” and that Flores met four of the eight criteria. A skeptic might ask if a patient had been unresponsive to chiropractic care for the extended period that this patient underwent-over one year of chiropractic treatment, why would you conclude that more aggressive chiropractic care was needed rather than determining some other treatment should be undertaken or that the patient had in fact achieved the maximum benefit?

Interestingly, the criteria relied upon by the plaintiff are issued by the “National Academy of Manipulation Under Anesthesia Physicians” (emphasis added). As pointed out above in New York chiropractors are not considered physicians. Stedman’s Medical Dictionary defines a physician as someone who practices medicine. So the very entity which is establishing guidelines for MUA by definition excludes chiropractors in New York. The clear implication is that MUA is to be performed by physicians and not chiropractors unless physician has some other connotation.

The facts of this case trigger another line of inquiry to be addressed. The MUA’s were performed in New Jersey. The first question to be asked would be could a licensed New York chiropractor perform MUA in New Jersey? It would seem that to perform any chiropractic services in New Jersey, like most professions, the chiropractor would have to be licensed there. Plaintiff’s submitted copies of their New Jersey registration certificates indicating that they are permitted to perform MUA in New Jersey. It also appears that the definition of chiropractic services in New Jersey is much broader than that in New York. In fact, in New Jersey [*14]chiropractors can have the title “chiropractic physician.” However, they are not included in the definition of the practice of medicine and surgery [NJSA 45:9-5.1]. Neither side provided any information as to whether MUA would qualify as “surgery” in New Jersey. It does appear that chiropractors in New Jersey may be permitted to perform surgery such as MUA under a different statue.

The New Jersey statute provides: “No licensed chiropractor shall…perform surgery as requires cutting by instruments or laser excepting adjustment of the articulations of the spinal column or extremities”[NJSA 45:9-14.5(b)]. The definition of chiropractic in that statutory section specifically includes manipulation of the soft tissue of the body, as well as the spine and other joints so, presumably MUA would be a permitted practice in New Jersey. This definition is far more liberal than that of the New York statute. In fact case law in New Jersey holds that whether a chiropractor can do adjustments beyond the spinal area mus be addressed in a case by case basis [Bedford v Riello, 195 NJ 210 (2008)].

Unfortunately, for the plaintiffs, the claim arose from an accident in New York, the patient resides in New York and the claim is filed under the New York State Insurance Law. So the New York definitions as to the scope of the services that a chiropractor may provide and not the law of the situs of the service determines whether the plaintiffs are entitled to payment for the MUA. This is not the place to continue the debate from “Gypsy” as to whether New York is the center of the world as asserted by Miss Cratchitt or New York is the center of New York as Mama Rose alleges.

It must be concluded that as the New York statute is written, chiropractors cannot treat areas of the body outside of the spinal column unless there is a direct link between the pain in that area and a problem which manipulation of the spinal column can alleviate. Plaintiffs have failed to establish that Flores’ treatment by an MUA was related to the automobile accident.

C. “This is another fine mess you’ve gotten me into.”

Without the assistance of Stan Laurel, no-fault insurance in New York is clearly in need of reform. Since the Civil Court began tracking these cases in 2006, the number of cases brought in New York City has exceeded 200,000 or about 25% of the court’s case load. It does appear that the number of filings has declined in 2011 & 2012 to less than 200,000 cases. The court must wonder what is in the economic structure of this system where health care providers are willing to not be paid for services they previously rendered to a patient and then to have to litigate the issue in the hope that some percentage of the claims will be settled or paid after prevailing at a trial. And again the court is only seeing the claims that result in litigation. It excludes claims that are not pursued at all or wind up in arbitration. Is the reimbursement rate for no-fault so high when compared to other insurance payments that it is economically feasible to absorb so many unpaid claims? It must be questioned why highly trained professionals are so willing to work for free. [*15]

On the other hand, why would the insurance industry continue to want to have a system in place which is litigation generating with all its attendant expenses by its very nature? The cost of trying cases must be less than paying the claims or else they would be seeking to remedy the system.

In no-fault land carriers assert the “Goldilocks Rule” in regard to diagnostic testing. Health care providers are only paid if the test is not performed “too early” or “too late” but “just right.” Also where else but in no-fault land do you get to have two attorneys trying cases-with doctors as witnesses- where the amount in controversy is less than the cheap seats at Yankee Stadium?

Ironically, no-fault uses the workers’ compensation fee schedule to pay health care providers. Yet, by statute, workers’ compensation requires pre-approval of all non-emergency treatments something that for some unknown reason is missing from the no-fault law [Workers’ Compensation Law Article 2; 12 NYCRR §325-1.4]. Actually there is nothing in the no-fault law which precludes obtaining pre-approval before rendering non-emergency treatment so why not require it by contract? Unless of course the terms of the entire no-fault contract is generated by the State Insurance Department and because those regulations do not include pre-approval it is barred.

Also, worthy of comparison is the language of Education Law §6731 covering physical therapists. It limits treatments by a physical therapist to ten visits or thirty days if the treatments were “without referral from a physician, dentist, podiatrist, nurse practitioner or licensed midwife….”[Education Law §6731(d)]. Absent from the list are chiropractors. No similar treatment restriction is found in regard to treatment by chiropractors in Education Law Article 132.

Adoption of either of these standards to no-fault insurance claims would reduce the amount of this litigation.

Part of the problem apparently is the inability of the legislature to consistently apply the language of its own statutes. Under the Education Law Article 131, only physicians practice “medicine” and only medical doctors may be referred to as a “physician.” Chiropractors do not practice medicine and are not physicians. The fact that the legislature does not adhere to its own statutes is obvious when the no fault law is read [Insurance Law Article 51]. Insurance Law §5102 defines “basic economic loss” under the no-fault law as

(1) All necessary medical expenses incurred for:(i) medical, hospital(…)surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy(provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) non-medical remedial care and treatment in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time provided within one year after the date of the accident causing the injury if it is ascertainable that [*16]further expenses may be incurred as a result of the injury.

A reading of the above section would lead to the conclusion that chiropractors are not covered by the no-fault statute as they are the only health service provider governed by Education Law, Title VIII, the “Professions” other than veterinarians and mid-wives not mentioned in the Insurance Law. The only way to include chiropractors is to say that they are covered in the”any other professional health services” of the statute. Considering all the other licensed professions are mentioned specifically and chiropractors have been licensed in New York from a time before the no-fault law was enacted, what the legislature intended must be questioned. Early cases interpreting the no-fault statutes held that if the language of the statute was followed, chiropractic services were not covered. Other courts held that the broadest definition of “medical” should be applied and that it obviously included chiropractors. This of course is a complete rewriting of the law defining medicine by the courts.

It should also be noted that chiropractors are not specifically mentioned in the Workers’ Compensation Law §13 as persons who could provide treatment to an injured worker and a separate section was added to include chiropractors [WCL §13-l].

It is clear that almost all of the current no-fault litigation in the court system could be eliminated by requiring “pre-approval” of all non-emergency care. Such a procedure would eliminate legitimate health care providers having to work for free when a claim is denied and would allow insurance carriers to investigate fraudulent claims beforehand and not after the fact.

MUA is the “icing on the cake,” “cherry on top,” or “gold ring on the merry-go-round” of the irrationality of the current no-fault system. MUA has the potentiality of generating five different lawsuits; one from each of the two chiropractors involved; one from the anesthesiologist; one from the pre-screening physician and one from the facility. Each suit could be brought in a separate county in New York City because the jurisdiction of the Civil Court is citywide and insurance carriers cannot claim they are not present in a particular county as they do business in them all. This situation would potentially result in five different rulings, or at a minimum two different ones such as the screening facility gets paid and the chiropractors do not.

Where else but in no-fault land can you have the situation where the chiropractor testifying is the same person who determined the corrections he has been giving are not working so that he can recommend a more aggressive treatment-requiring anesthesia and a surgical setting, to be performed by him, and who after it is done proclaims it a success. In no-fault land the patient who received the services never testifies. The court is only presented with the self-serving recommendation for the MUA and the self-serving conclusion that it was successful.

It would seem that the carrier would seek permissive joinder of these claims under CPLR §1002 as in theory, it is in the best position to know if it is being sued in different jurisdictions in regard to claims arising from the same occurrence or at a minimum should have the ability to check its own records to obtain that information. Why carriers apparently refuse to do so cannot [*17]be explained.

D. Did plaintiffs prove their prima facie case?

Where a plaintiff provider, as here, proves that completed claims forms have been submitted to the defendant carrier setting forth the fact and the amount of the services provided and the loss sustained, and that payment of the no-fault benefits are overdue, the provider establishes a prima facie case of medical necessity [West Tremont Medical Diagnostic, PC. V Geico Insurance Co., 13 Misc 3d 131(A), (2006)]. However, “[w]here the defendant insurer presents sufficient evidence to establish a defense based on a lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity” [id., citing Prince Richardson on Evidence §§3-104. 3-202 (Farrell 11th ed.); see also Delta Diagnostic Radiology, PC v American Transit Insurance Co., 2007 Slip Op. 52455(U)].

The court found defendant’s expert, Bogdan, to be a credible witness. The witness’ testimony sufficiently demonstrated that the treatment at issue was not chiropractically necessary. This shifted the burden back to the plaintiff to show that the treatments were chiropractically necessary. Although Grosso testified, the court concludes that his testimony was insufficient to establish that any chiropractic treatment, let alone MUA, of Flores was necessary after the services were terminated by defendant after receipt of Bogdan’s ICE report.

The cause of action of each plaintiff therefore must be dismissed.

Conclusion:

For all of the reasons above, plaintiffs causes of action in both cases are dismissed. Chiropractors are prohibited from performing MUA in New York. In addition, plaintiffs failed to establish that the patient’s injuries were causally related to the motor vehicle accident and that a physician screened the patient before the MUA was performed. Plaintiffs failed to establish that the MUA was chiropractically necessary.

Even if the court were to determine that MUA was chiropractically necessary the plaintiffs are not permitted to collect the full CPT Code rate they are restricted to 68.4% of the relative value unit allowable for medical doctors [New York State Workers’ Compensation Board Office of General Counsel letter August 14, 2009; see also Flatbush Chiropractic, PC v Metlife Auto & Home, 35 Misc 3d 1203(A) 2012].

Again this is not to say that properly trained chiropractors should not be prohibited from performing MUA. It is the function of the legislature to expand the definition of the chiropractic profession and not the court system.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision. [*18]

The foregoing constitutes the decision and order of the court.

Dated: August 16, 2012_________________________

Staten Island, NYHon. Philip S. Straniere

Judge, Civil Court

Footnotes

Footnote 1: One of the versions of “Dem Bones” also known as “Dry Bones” or “Dem Dry Bones” an often recorded folk song attributed to James Weldon Johnson.

Footnote 2: Also for some reason Bogdan “affirmed” his report and did not have it notarized. CPLR §2106 sets forth who can affirm documents rather than having to locate a notary and chiropractors are not on that list. This makes Bogdan’s independent chiropractic evaluation inadmissible in this action. The question of whether an insurance carrier such as Allstate can rely on the report to terminate services is not addressed in the CPLR as it applies only to reports being used for a “pending” action and no action was pending when the report was prepared. Absent a section of the Insurance Law or an Insurance Department regulation requiring a carrier to have an affirmation/affidavit in order to deny coverage, it is apparent that Allstate could use the improperly affirmed report to terminate chiropractic services. Neither side presented any law on this question. Allstate avoided the issue at trial by having Bogdan testify and be subject to cross-examination on what records he reviewed and the extent of the ICE.

Footnote 3: Ironically, there does not appear to be a definition in any New York statute or administrative rule as to what constitutes surgery. Apparently New York believes that it does not know exactly how to define surgery but knows what it is when it sees it.

Footnote 4: An elephant on a motorcycle is not an acceptable alternative response.

Civil Court of the City of New York, Kings County

046391/10

A P P E A R A N C E S :

ATTORNEYS FOR PLAINTIFF:

Gary Tsirelman, P.C.

65 Jay Street, Third Floor

Brooklyn, NY 11201

ATTORNEYS FOR DEFENDANT:

Iseman, Cunningham, Riester & Hyde, LLP

2649 South Road, Suite 230

Poughkeepsie, New York 12601

Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion

PapersNumbered

Notice of Motion and Affidavits Annexed………….. …………………………1

Notice of Cross-Motion and Affidavits Annexed.. ………………………….

Answering Affidavits………………………………………………………………….. .2

Replying Affidavit of defendant…………………………………………………….3

Exhibits………………………………………………………………………………………..

Other: ………………………………………………………………………………………….

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

This case presents raises a new twist to previous rulings that the notification requirements for verification requests, as contained in 11 NYCRR §§65-3.5 and 3.6, do not apply to examinations under oath (“EUOs”) that are scheduled prior to the insurance company’s receipt of claim forms (“pre claim EUO”).

Defendant Hartford Insurance Co. (“defendant” or “Hartford”) seeks summary judgment [*2]based upon the assignor’s failure to appear at both a pre-claim EUO, which was adjourned on consent, and an EUO noticed and scheduled subsequent to defendant’s receipt of the claim which, under precedent, triggers strict regulatory time deadlines for compliance with verification requests. Plaintiff Lender Medical Supply, Inc. (“plaintiff” or “Lender”) opposes defendant’s motion on the grounds that since the first scheduled EUO was adjourned on consent, defendant had to request that the assignor appear for two other EUOs, pursuant to 11 NYCRR §65-3.6(b), before it could deny the claim, which it failed to do.

Lender provided medical equipment to its assignor on September 18, 2009. Hartford, by letter dated October 9, 2009, scheduled the assignor for an EUO to be held on November 10, 2009. On October 23, 2009, after it had sent the EUO request but prior to the scheduled date of the EUO, Hartford received the claim from plaintiff. Defendant granted the assignor’s request for an adjournment by letter dated November 10, 2009 and rescheduled the assignor’s EUO for November 17, 2009. After the assignor failed to appear at the rescheduled EUO, the defendant issued a denial dated December 8, 2009 based upon the assignor’s failure to appear for both EUOs.

As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person …shall…as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same[11 NYCRR §65 – 1.1(d) [Sec. I. Conditions, Proof of Claim (b)]. Another condition to coverage under this section sets forth that an eligible person shall submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.”

11 NYCRR §65-3.5 details the verification procedures to be followed after the insurer receives the completed application for no fault benefits (NYS form N-F2). The insurance regulations provide for EUOs and IMEs as part of an insurer’s “entitlement to additional verification” following receipt of a provider’s statutory claim forms. Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc 3d 18, 19 (App. Term. 2d Dept. 2004), aff’d in pert part 35 AD3d 720 (2d Dept. 2006). See also, All-Boro Medical Supplies, Inc. v Progressive Ins. Co., 20 Misc 3d 554 (Civil Ct., Kings Co,. 2008); Lumbermen’s Mutual Casualty Company v. Inwood Hill Medical P.C., et al, 2005 NY Slip Op 51101(U), 8 Misc 3d 1014(A) (Sup. Ct., NY Co. 2005). An insurer may toll the 30 day period it has in which to deny a claim by properly requesting verification within 15 days from the receipt of the proof of claim form or bill (11 NYCRR §65.3.5). See, Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc 3d 723 (Civ Ct. Queens Co., 2004).

Where an EUO is requested as additional verification after receipt of the claim, the insurer must schedule an EUO within a reasonable time frame and as “expeditiously as possible.” Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 (App. Term, 2d Dept. 2008). See Bayside Rehab. & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542, 546 (Civil Ct., Richmond Co. 2009). If the “requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested., either by a telephone call or [*3]by mail. 11 NYCRR § 65-3.6(b). “A claim need not be paid or denied until all demanded verification is provided.” New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 569, 570 (2d Dept. 2004). See, Insurance Law § 5106(a); 11 NYCRR §§65-3.5(c), 65-3.8(a)(1).

Failure to submit a timely follow up request will void the tolling provisions of the time in which to submit a denial and will preclude a defendant from asserting the defense based on failure to produce requested verification, including failure to appear for a post-claim EUO. See, All-Boro Medical Supplies supra at 557; Kings Medical Supply Inc. v. Kemper Auto & Home Ins. Co., 2005 NY Slip Op 51450(U), 7 Misc 3d 128(A) (App. Term, 2 & 11th Dist. 2005). Therefore, in order for an insurer to predicate its denial based upon an assignor’s failure to appear for a post-claim EUO, it must prove that it sent both an original and follow up request and that the injured party failed to appear for both scheduled EUOs. See, Advanced Medical, P.C. v. Utica Mutual Ins. Co., 2009 NY Slip Op 51023(U), 23 Misc 3d 141(A) (App. Term, 2d Dept. 2009).

The detailed and narrowly construed verification procedures contained in 11 NYCRR 65-1.1(d) and 65-3.5(d) governing EUOs that are requested after receipt of a claim do not apply to EUO demands prior to the submission of a claim form. See Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 7 Misc 3d 18, 21 (App. Term, 2nd Dept. 2004). The right to an EUO prior to an insurer’s receipt of the claim is “not afforded by the verification procedures and timetables,” but rather by the mandatory personal injury protection, “which is independent of the verification procedures.” Id at 21. Furthermore, these detailed verification procedures are “not amenable to application at a stage prior to the submission of a claim form.” Id, at 21. See, Prime Psychological Services, P.C. (Ortiz) v. Nationwide Property and Cas. Ins. Co., 24 Misc 3d 230 (Civil Ct., Richmond Co. 2009) (an insurer not required to send EUO requests to the provider’s attorney for a pre claim EUO); Bayside Rehab., supra, an insurer need not notify the assignee medical services provider of pre claim IME cut off notice).

Therefore, an insurer is not obligated to send out a follow up request after an assignor failed to appears for a pre-claim EUO.^[FN1] Prime Psychological Services (Horne) v ELRAC, 2009 NY Slip Op 52579(U), 25 Misc 3d 1244(A) (Civil Ct., Richmond Co. 2009). It can properly deny the claim, retroactive to the date of loss, for the assignor’s failure to attend the one pre-claim scheduled IME so long as it mails the denial within 30 days of its receipt of the claim. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006); Amaze Medical Supply, Inc., 2006 NY Slip Op 50909(U), 12 Misc 3d 127(A) (App. Term, 2d Dept. 2006); Prime Psychological (Horne), supra; All-Boro, supra. [*4]

Here, defendant cannot deny the claim based upon the assignor’s failure to attend the EUO that was scheduled prior to defendant’s receipt of the claim. By letter dated November 10, 2009 defendant’s attorney confirmed that at the request of the assignor’s attorney, the EUO was adjourned and that Hartford would provide his client with one final opportunity to appear for an EUO on November 17, 2009. Defendant’s consent to the adjournment vitiated its right to count the assignor’s failure to appear at the EUO as a no show. See Vitality Chiropractic, P.C..v . Kemper, 14 Misc 3d 94 (App. Term, 2d Dept. 2006)(mutually agreed upon rescheduling of initial IME is not equivalent of failure to supply requested verification.)

Furthermore, once defendant received the claim from the plaintiff, it was required to adhere to statutory and regulatory scheme of verification for the processing of no-fault claims. All-Boro Medical Supplies, supra, 20 Misc 3d at 556-557. Thus, defendant was required to send a follow-up request for an EUO pursuant to 11 NYCRR §65-3.6(b), once the assignor failed to appear for the scheduled November 17th date. Having failed to issue a follow up request, defendant could not assert, as a matter of law, the assignor’s failure to appear for the EUO as its basis to deny the claim. See, All- Boro, supra at 557.

Accordingly, defendant’s motion for summary judgment is denied and the case is to proceed to trial.

The foregoing shall constitute the Decision and Order of the Court.

Dated: May 01, 2012___________________________

Katherine A. LevineJudge, Civil Court

Footnotes

Footnote 1:Insurer could have properly denied plaintiff’s claim upon plaintiff’s failure to show up for a pre-claim EUO as a violation of a condition precedent to coverage. See Neomy Medical, P.C. v. American Transit Ins. Co., 2011 NY Slip Op 50536(U), 31 Misc 3d 1208(A)(Civ. Ct., 2011).

Civil Court of the City of New York, Kings County

CV 076337/09

Sara Pankowski, Esq.

Attorney for Plaintiff

Gary Tsirelman, PC

65 Jay Street

3rd Floor

Brooklyn NY 11201

718-438-1200

Morgan MacKay, Esq.

Attorney for Defendant

Law Offices of Teresa M. Spina

170 Froehlich Farm Blvd.

Woodbury NY 11797

516-496-5822

Reginald A. Boddie, J.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for psychological services alleged to have been provided to the subject assignor. Plaintiff seeks reimbursement for an initial interview in the amount of $194.58, evaluation of records in the amount of $67.24, five hours of psychological testing in the amount of $696.50, and explanation and interpretation of results in the amount of $103.31 (plaintiff’s bill). Plaintiff was paid for the initial interview. The remainder of the services were denied as medically unnecessary (defendant’s NF-10).

The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denial, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issue for trial was lack of medical necessity.

Plaintiff rested, relying on the stipulation that it had established its prima facie case. [*2]Defendant’s witness was unavailable and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied. (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defense (CPLR 4401). Defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor, relying on the stipulation that it established timely and proper denials, and that the peer review report and medical records were in evidence. The court reserved decision and the parties submitted post-trial briefs on January 2, 2012 and January 12, 2012. After consideration of the evidence and the parties’ arguments, the court denies plaintiff’s motion and grants judgment to the defendant for the reasons indicated herein.

Under New York no-fault law, plaintiff must establish its prima facie case by demonstrating submission to the defendant of a claim form, proof of the fact and amount of the loss sustained, and proof either that the defendant failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff did not offer any evidence establishing that the denial was untimely, conclusory, vague or without merit as a matter of law. Nevertheless, as a consequence of the parties’ prima facie stipulation, the burden shifted to defendant to prove the timeliness of its denial and the defense stated therein (Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists 2004]). However, because the parties also stipulated that defendant timely denied the bills, the only issue for trial was lack of medical necessity.

Defendant “bears both the burden of production and persuasion” as to its defense of lack of medical necessity (Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005],citing King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 771 [Civ Ct, Kings County 2004]); and the sole evidence presented here by defendant is the peer report and medical records which were stipulated into evidence.

To meet its burden of proof at trial on the defense of lack of medical necessity, at a minimum, defendant must establish a factual basis and medical rationale for the lack of medical necessity for the services for which reimbursement is sought (Nir, 7 Misc 3d at 546-547, [citations omitted]). To establish the factual basis, the defense must be supported by sufficient factual evidence or proof and cannot be conclusory (Nir at 547, citing Inwood Hill Med. v Allstate Ins. Co., 3 Misc 3d 1110[A], 2004 Slip Op 50565[U] [Civ Ct, New York County 2004]). A peer review report may be found to have insufficient factual basis “…if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim” (Nir at 547, citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 2004 NY Slip Op 24119 [App Term, 2d Dept 2004]).

Furthermore, the medical rationale referenced in a peer review report must be within the [*3]generally accepted medical or professional practice. “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Nir at 547, citing Citywide Social Work & Psychological Serv. PLLC v Travelers Indem. Co., 3 Misc 3d 608, 616 [Civ Ct, Kings County 2004]). A peer review report may be found insufficient when unsupported or controverted by evidence of “generally accepted medical/professional practice” (id.). However, where plaintiff rebuts the defendant’s evidence with its own demonstrating that the medical services were consistent with generally accepted medical practice, the defendant’s peer report may be accorded less weight, and the court may find that defendant failed to meet its burden (Nir at 547, citing see Elm Med. P.C. v Am. Home Assur. Co., 2003 NY Slip Op 51357[U] [Civ Ct, Kings County 2003]).

As a preliminary matter, the court notes that the peer review report of Michael H. Rosenfeld, Psy.D. was electronically signed and not notarized (see Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Radiology Today, P.C. v Geico Ins. Co., 20 Misc 3d 70, 71-72 [App Term, 2d & 11th Jud Dists 2008]; CPLR 2106). Despite this omission, the court is compelled to consider the report as direct evidence of defendant’s defense since the document was admitted pursuant to the parties’ stipulation; and a court may not cast aside an open-court stipulation absent proof it was entered into by “fraud, collusion, mistake, accident or other such ground” (Matinzi v Joy, 60 NY2d 835, 836 [1983]; In re Frutiger’s Estate, 29 NY2d 143 [1971]; Gage v Jay Bee Photographer, Inc.,222 AD2d 648, 649 [2d Dept 1995]). Here, no such proof was alleged or demonstrated.

The subject assignor, a thirty-seven year old female, was involved in a motor vehicle accident on January 8, 2008, and was alleged to have suffered head, neck and lower back pain, and gone home after the accident (Narrative Report at 2). The psychologist allegedly interviewed the assignor and gave her a mental status examination along with a series of self- administered checklist tests, including a Beck Depression Inventory (BDI), a Beck Hopelessness Scale (BHS), Beck Anxiety Inventory (BAI), Neuropsychological Symptom (NSC), Patient Pain Profile (P-3), and Posttraumatic Stress Diagnostic Scale (PDS) (id. at 4).

The peer review doctor, Michael H. Rosenfeld, Psy.D., a New York State Licensed Psychologist, whose report and resume were admitted into evidence, stated that he reviewed the patient’s records concerning the services provided by John R. Braun, Ph.D., as well as the reports and recommendations related thereto. In the report, he indicated:

Claimant is a 37-year-old female who alleges she was involved in a motor vehicle accident on January 8, 2008 and was evaluated by John R. Braun, Ph.D. from All Boro Psychological Services, P.C. from January 16, 2008 to January 23, 2008. The claimant received a diagnostic interview, a review of medical records, five hours of psychological testing and an explanation of results (Peer Report at 1). Claimant was the driver of a vehicle involved in a motor vehicle accident on 1/08/08 reportedly resulting in head, neck and lower back pain. There was no loss of consciousness, fractures or lacerations (id. at 2). “…[T]he initial subjective complaints included: increased general nervousness, fear of driving or riding in cars, nightmares, headaches, [*4]dizziness, irritability, etc.” (id.).

Dr. Rosenfeld stated, “Given the complaints, the initial intake was appropriate, the psychological testing was excessive, clinically unnecessary, and deviates from accepted standard practice in psychology” (id. at 2). Citing psychological reference material, Dr. Rosenfeld explained, such tests “should not be used routinely, but to address specific questions, the answer to which may alter the patient’s treatment.” He then set forth three basic criteria which, when met, establish the necessity of psychological testing within the profession, as follows:

1. The reason for testing must be based on a specific referral question or questions from the treating provider and related directly to the psychiatric or psychological treatment of the patient

2. The specific referral question or questions cannot be answered by means of diagnostic interview

3. The specific referral question or questions and testing results will have a meaningful impact on the rendering of a diagnosis and the course or outcome of treatment (id.)

He stated, in this case, none of the criteria were met and elaborated on the reasons why the administration of these tests was inappropriate; namely, that the testing would not alter the diagnosis or treatment of the patient in any meaningful way. He also stated review of the records is normally part of the initial interview and the explanation was unnecessary since the tests were not warranted (id. at 3).

Accordingly, the court finds that Dr. Rosenfeld’s peer review report sets forth a sufficient factual basis and medical rationale for the lack of medical necessity asserted in the denial. The court notes plaintiff has failed to rebut defendant’s evidence with its own testimonial or other documentary evidence (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 5232[U][App Term, 2d, 11th & 13th Jud Dists 2009], citing see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495 [App Term, 2d, 11th & 13th Jud Dists 2009]). Additionally, the court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. However, on these facts, the court finds defendant was not required to present an expert witness to provide live testimony at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal.

Therefore, the plaintiff’s motion for a directed verdict is denied. Defendant is granted a judgment in its favor, and the complaint is dismissed with prejudice.

This constitutes the Decision and Order of the court.

Dated: January 31, 2012

Brooklyn, NY

_______________________

Hon. Reginald A. Boddie

Judge, Civil Court [*5]