The Rogak Report: 04 Apr 2007 ** No Fault - Peer Reviews **
- WHEN PEER REVIEW DOCTOR WRITES THAT HE LACKS SUFFICIENT INFORMATION,
INSURER MUST SEEK FURTHER VERIFICATION
A.B. Med. Servs., PLLC a/a/o EKATERINA ZUBRITSKAYA v. American Tr.
Ins. Co., 2007 NYSlipOp 50680(U) (App Term, 2d Dept)
In this no fault action, plaintiff moved for summary judgment and
defendant submitted opposition papers which asserted that defendant
timely denied plaintiff's claims based upon peer review reports and
because plaintiff sought fees in excess of the Workers' Compensation
fee schedule. Civil Court, Kings County, denied plaintiff's motion on
the ground that defendant's submissions demonstrated the existence of
triable issues of fact.
In opposition to plaintiff's motion, defendant's claims
representative stated that defendant never received the claim form
seeking the sum of $480. Having found that the burden shifted to
plaintiff, "the lower court erred in implicitly finding that
defendant's mere denial of receipt of said form was sufficient to
rebut the presumption of receipt, thereby raising an issue of fact
(see A.B. Med. Servs. PLLC v. Motor Veh. Acc. Indem. Corp., 6 Misc 3d
131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]).
Accordingly, plaintiff was entitled to summary judgment upon this
claim. We note that the affidavit of plaintiff's billing manager set
forth that he personally mailed plaintiff's claim forms."
"The affidavit of defendant's claims representative established that
defendant timely denied plaintiff's claims for the sums of $1,573.24,
$1,546.20 and $604.24 on the ground of lack of medical necessity,
based on the peer review reports of Dr. Seliger, Dr. Russ and Dr. Mo,
respectively, which were attached to the denial of claim forms. Since
the affirmed peer review report of Dr. Seliger set forth a factual
basis and medical rationale for his opinion that the medical services
provided were medically unnecessary, it was sufficient to raise a
triable issue of fact as to plaintiff's $1,573.24 claim (see Amaze
Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005
NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]). However, the
peer review reports of Dr. Russ and Dr. Mo indicated that the claims
for $1,546.20 and $604.24, respectively, were not medically necessary
since they lacked sufficient information upon which to make such a
determination. 'The fact that the reviewer[s] lacked sufficient
information does not, in and of itself, demonstrate a triable issue
of fact, without a showing that defendant sought to obtain such
information by means of a request pursuant to the verification
procedures' (A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6
Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud
Dists]; see also A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12
Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Since defendant did
not demonstrate that it sought verification to obtain the missing
information, defendant did not establish a triable issue of fact with
regard to the claims for the sums of $1,546.20 and $604.24.
Consequently, plaintiff was entitled to summary judgment upon these
two claims. With respect to the remaining claims, defendant's claims
representative asserted that they were timely denied based on the
ground that the fees charged were in excess of the Workers'
Compensation fee schedule. Said defense raised a triable issue of
fact warranting the denial of plaintiff's motion for summary judgment
as to said claims (see Triboro Chiropractic & Acupuncture P.L.L.C. v
New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op
50856[U] [App Term, 2d & 11th Jud Dists])."
"Accordingly, partial summary judgment is granted to plaintiff in the
sum of $2,630.44, and the matter is remanded to the court below for
the calculation of statutory interest and an assessment of attorney's
fees due thereon pursuant to Insurance Law § 5106 (a) and the
regulations promulgated thereunder, and for all further proceedings
on the remaining claims."