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The Rogak Report: 18 Oct 2007 (Part III) ** No Fault - Low Impact Studies **

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  • Lawrence Rogak
    Message 1 of 1 , Oct 18, 2007
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      Bronx Radiology, P.C. a/a/o Mohamdou Hydara v. New York Cent. Mut. Fire Insurance Company
      2007 NYSlipOp 27427
      Decided on October 17, 2007
      Appellate Term, First Department
      Edited by Lawrence N. Rogak

      In this no-fault suit, plaintiff medical provider was awarded summary judgment by Civil Court, Bronx County (Julia Rodriguez, j) on its claims for payment for three MRIs performed on its assignor, following an automobile accident on November 27, 2003. The MRIs revealed injuries to the assignor's neck, lower back and knee.  New York Central issued timely NF-10s, contending, as the sole reason for its denials, that the assignor's injuries did not arise out of the subject automobile accident, a conclusion based exclusively on a written accident reconstruction report ("low-impact study").   "The study's conclusion that the subject accident posed 'no risk of injury' to some unknown 'volunteer test subjects' was reached without any consideration of the assignor's claimed injuries, wrote the Court.  The Civil Court granted summary judgment to plaintiff, holding that the low-impact study and the affidavit of the engineer who drafted the report, while admissible, did not suffice to raise triable issues of fact as to whether the assignor's claimed injuries arose out of the accident."

      The Appellate T erm affirmed.  "As a general rule, expert opinion evidence based upon accident reconstruction studies is admissible in common law negligence actions on issues related to causation....  Here...  defendant's low-impact study was conducted without a medical file review or an independent assessment of the assignor's claimed injuries, if indeed they were known when the report was prepared. The only aspect of the report remotely bearing on any causation issue was the conclusory statement that the accident 'posed virtually no risk of injury to voluntary test subjects.' The issue, therefore, is whether such a study is sufficient to deny summary judgment in a first party no-fault action where plaintiff has made out a prima facie showing of entitlement to judgment."

      "In the typical negligence action, plaintiff's burden of establishing causation is met by a showing that the accident was a proximate cause of the claimed injuries. However, in an action to recover first party no-fault benefits, a plaintiff bears no such burden and establishes his or her prima facie case by proof that the claim form was mailed and received, and that the insurer failed to pay within the 30-day statutory period. In essence, causation is presumed since it would not be reasonable to insist that a medical provider must prove as a threshold matter that its patient's condition was caused by the automobile accident.  Thus, the burden is on the defendant insurer to come forward with proof establishing by fact or founded belief its defense that the claimed injuries have no nexus to the accident."

      "While generally speaking, accident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries. This is certainly true in the first party no-fault scenario, where an insurer disclaiming coverage has the burden of establishing that "the medical condition for which the assignor was treated was not related to the accident at all. Whether a causative nexus exists between an accident and injury cannot be resolved without recourse to the medical facts."

      "Here, defendant offered no medical evidence whatsoever to demonstrate a lack of causation. It failed to perform a medical examination of plaintiff's assignor or conduct a peer review of his medical treatment in the aftermath of the accident. Absent from defendant's denial forms was any allegation that the MRIs were not medically necessary or that plaintiff's assignor was not injured as described in the MRI reports. Nor did defendant rely on any evidence of an event or ongoing chronic condition in the assignor's past medical history to explain his injuries. Significantly, the low-impact study specifically contains a disclaimer that the engineering consulting firm which produced the report did not perform a medical file review or an assessment of injuries alleged by the assignor."

      "Defendant's low-impact study contains a 'one size fits all,' generalized 'medical' component, which does not explain how the assignor's injuries are causally incompatible with the subject accident. As the concurring opinion correctly points out, the author of the low-impact study, in the absence of a medical review of plaintiff's injuries, had no way of knowing whether the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion."

      "It bears mention that the low impact study here under review appears to have been ordered five days before the defendant insurer acknowledged having received the claims for the MRIs. Why an insurer would incur the expense of an accident reconstruction to eliminate an accident as a cause of injuries before receiving a diagnosis, is yet to be explained by defendant. We acknowledge that the No-Fault statute, together with the rules and regulations promulgated thereunder, do not distinguish between diagnostic testing and treatment with respect to the denial grounds available to an insurer. However, the purpose of the statutory scheme, to streamline the processing of claims for basic economic loss arising from automobile accidents, necessarily would be frustrated if an insurer could deny reimbursement to a medical provider who performs appropriate diagnostic tests in response to a patient's complaints, based solely upon a generic brand of accident reconstruction which gives no consideration to the patient's diagnosis or injuries."

      "We do not say that there can never be a situation where a low-impact study, standing alone, would suffice to create an issue of fact on causation in a first party no-fault benefit case. Such a situation might be presented, for example, where an assignor has sustained an identifiable injury, the cause of which is so clearly unrelated to the biomechanics of the accident as to require no corroborative medical proof or where the assignor has not sustained any injury. Such is not the case here."

      Comment: One judge wrote a concurring opinion, with which the majority took exception.  Parts of that concurring opinion are worth noting, especially because they are a lesson on how to make future similar efforts more successful:

      "The Appellate Term, Second & Eleventh Judicial Districts has held that a low impact study may constitute a proper basis for denial of a summary judgment motion provided it is in admissible form (see AB Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 51347 [U] [App Term, 2d & 11th Jud Dists]). It relied on Appellate Division analysis in determining that an accident analysis report is relevant to the issue of causation (see Ocean Diagnostic Imaging PC v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525 [U] [App Term, 2d & 11th Jud Dists], citing Valentine v Grossman, 283 AD2d 571 [2d Dept 2001]). Furthermore, referring to the coverage defense, a low impact study has been found to be 'sufficient to demonstrate that the defense was based upon a founded belief that the alleged injuries do not arise out of an insured accident'" (Ocean Diagnostic Imaging PC v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525 [U] [App Term, 2d & 11th Jud Dists], quoting Central General Hospital v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). "

      "The first issue here is whether Cipriani's affidavit, together with the low impact study report, were sufficient to raise an issue of fact to defeat plaintiff's motion for summary judgement. After analyzing the police report, repair estimates, written statements made by the drivers, and photographs of the Ford, Cipriani opined that the 'average acceleration of [assignor's] Ford posed virtually no risk of injury to volunteer test subjects.' There is no indication that he factored in the Ford striking the toll booth barrier as affecting the 'average acceleration.' He did not (1) calculate the forces generated by the accident, (2) correlate the forces to the injuries allegedly sustained by the plaintiff nor (3) conclude that there was not enough force generated in the collision to cause said injuries."

      "The low impact study report states that neither a medical file review nor an assessment of the injuries alleged by the plaintiff was performed and did not indicate whether the plaintiff was wearing a seat belt. Therefore he did not know if the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion."

      "Cipriani's study is general and not specific to the plaintiff but to volunteer test subjects whose age and state of health is not indicated so as to form a proper basis for comparison. The report does not and could not explain how the low impact test results demonstrated that the unknown plaintiff's injuries were unrelated to the subject accident. While Cipriani opined that the acceleration of the plaintiff's vehicle 'posed virtually no risk of injury', he did not give an opinion as to whether this particular accident caused the injuries allegedly sustained by the plaintiff. Therefore the study was too vague and conclusory to raise a triable issue of fact or to support the defendant's conclusion that the accident was not severe enough to have caused the injuries allegedly sustained."

      Larry Rogak

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