Feroleto Law, Buffalo NY

LAW REGARDING PROPER NO-FAULT SUBMISSIONS AND DENIALS FOR PEER REVIEWS

An applicant establishes a prima facie showing of its entitlement to No-Fault benefits 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 were overdue. Sunshine Imaging Association/WNY MRI v. Government Employees Ins. Co., 66 A.D.3d 1419, 885 N.Y.S.2d 557(4th Dept. 2009).

The submission of respondent’s denial of claim form establishes prima facie that the insurer received the claim referenced therein as having been submitted by the provider and that the insurer did not pay the claim. See Lopes v. Liberty Mutual Ins. Co., 24 Misc.3d 127(A). Further, lack of medical necessity is a valid defense to an action to recover No-Fault benefits, Countrywide Ins. Co. v. 563 Grand Med., P.C., 50 A.D.3d 313 (1st Dept. 2008) if raised in a denial thatis (1) timely, (2) includes the information called for in the prescribed denial of claim form,and (3) “promptly apprise(s) the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated”, General Accident Ins. Group v. Cirucci, 46 N.Y.2d 862, 864, 414 N.Y.S.2d 512, 387 N.E.2d 223 (1979).

The issue of whether treatment is medically unnecessary cannot be resolved without resort to meaningful medical assessment,  such as by a qualified expert performing an independent medical examination, conducting a peer review of the injured person’s treatment, or reconstructing the accident. Kingsbrook Jewish Med. Ctr. v. Allstate Ins. Co., 2009 NY Slip Op 00351 (App Div 2d Dept., Jan. 20, 2009). An insurance carrier must, at a minimum, establish a detailed factual basis and a sufficient medical rationale for its asserted lack of medical necessity. Vladimir Zlatnick, M.D., P.C. v. Travelers Indem. Co., 2006 NY Slip Op 50963.

A peer review report’s factual basis may be insufficient if it fails to provide specifics of the claim, is conclusory, or otherwise lacks a basis in the facts of the claim. See Devonshire Surgical Facility, Carnegie Hill Orthopedic Servs., P.C. v. American Tr. Ins. Co., 2011 NY Slip Op 50513(U) (App Term 1st Dept. April 5, 2011. Even if a peer review is sufficiently factually based, its medical rationale may be inadequate if it fails to demonstrate that the disputed services were inconsistent with generally accepted medical or professional practice. See, e.g., James M. Ligouri Physician, P.C. v. State Farm Mut. Auto. Ins. Co., 2007 NY Slip Op 50465(U) (N.Y. Dis. Ct. 2007.

In Matter of Elvina Surgical Supplies, (April 2012), citing the above case law, the arbitrator held that without evidence of accepted medical practice, a peer reviewer’s opinion is simply a different professional judgment, which, in and of itself, does not establish that the disputed services were unnecessary to treat assignor’s condition.   It was held:

Applicant’s attorney argued that the peer review was conclusory and failed to addressspecifics of the claim. She noted that, while Dr. Winell discussed “common patterns” of shoulder injuries, sprains, and rotator cuff injuries, at no time did he address assignor’s actual injuries — a “partial tear of the supraspinatus tendon and acromial impingement”. She also pointed out that missing from the peer review was any articulation of the accepted protocol for treating those injuries. Accordingly, she asserted, Dr. Winell failed to set forth a sufficient factual basis or medical rationale for his conclusion that the DME was medically unnecessary and was only expressing his own opinion. I agree.”

“Given that Dr. Winell failed to set forth a sufficient factual basis and medical rationale for his opinion that the provision of the CPM unit was not medically necessary, I find that Respondent did not establish, prima facie lask of a medical necessity for this disputed service.”