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The Rogak Report: 04 Apr 2007 ** No Fault - Peer Reviews **

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  • Lawrence Rogak
    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
    Message 1 of 1 , Apr 5, 2007
      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 ยง 5106 (a) and the
      regulations promulgated thereunder, and for all further proceedings
      on the remaining claims."

      Larry Rogak
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