Plaintiff brought this action seeking recovery of first party no-fault benefits for medical services rendered to its assignor. Plaintiff is a health care provider and Defendant was the no-fault insurance carrier at the time the accident occurred. The amount at issue is $879.73. Based on the evidence adduced at trial this Court renders the following findings of fact and conclusions of law.

At trial, the parties stipulated and agreed that Plaintiff established its prima facie case by submitting a proper proof of claim and that Defendant made timely denial of the claim. The parties also agreed that the records forwarded to the Defendant's peer review doctor as well as the [*2]peer review report would be admitted into evidence. Therefore, the only issue before the Court was whether the Magnetic Resonance Imagining (MRI) test of the plaintiff's cervical spine was medically necessary. Defendant bore the burden of proof to establish by admissible evidence its belief that the services rendered were not medically necessary (see, Citywide Social Work & Psy. Serv. v. Travelers Indem. Co., 3 Misc 3d 608 [Civ. Ct. Kings Co., 2004]; Elm Medical P.C. v. American Home Assurance Co., 2003 NY slip Op. 51357[U], 2003 WL 22471156 [Civ. Ct., Kings Co., 2003]). If the Defendant sustains this burden, the burden of persuasion shifts back to plaintiff to submit rebuttal evidence that the services rendered were medically necessary (see, A.B. Medical Services PLLC, D.A. Chiropractic, P.C., Square Synagogue Transportation v. State Farm Mutual Automobile Ins. Co.,7 Misc 3d 822; V.S. Medical Services, P.C. v. Allstate Insurance Co., 11 Misc 3d 334; PDG Psychological, P.C.. v. State Farm Insurance Co., 12 Misc 3d 1183(A).

To sustain its burden of proof, the Defendant called Dr. Bazos, as its chief and only witness. The parties stipulated that Dr. Bazos may testify as an expert in the field of Orthopedic medicine. Dr. Bazos testified that he reviewed the MRI reports and determined that the MRI performed on Plaintiff was not medically necessary. He stated that a MRI is necessary when there is significant clinical findings and the patient is a surgical candidate. Dr. Bazos stated that Plaintiff's examination was proper and well documented; that there was no indication that Plaintiff was a candidate for surgery; that based on Plaintiff's diagnosis of soft tissue injury, said injuries usually resolve within four to six weeks with a conservative course of treatment consisting of physical therapy and anti-inflammatory medication. Dr. Bazos stated that Plaintiff had multiple post traumatic soft tissue injuries which did not necessitate the need for a MRI. That these injuries were typical post accident injuries and that the performance of an MRI for such injuries was a deviation from the generally accepted standard of care in the medical profession. On cross examination, Plaintiff's counsel attempted to impeach the credibility of Dr. Bazos claiming that in 90 percent of his peer reviews, Dr. Bazos found that MRIs were medically unnecessary.

Expert witnesses, like any other witness can be questioned for the purpose of showing their feelings, bias or prejudice (see Herring v. Hayes, 135 App. Div. 2d 684). A medical expert can be questioned about fee arrangements, prior testimony for the same party, and financial interest in the outcome of the case (see Zimmer v Third Avenue R.R. Co., 36 App. Div. 273). In the case at bar, Plaintiff's counsel thoroughly cross examined Dr. Bazos concerning the number of times he testified, his understanding of the use of peer reviews, the number of peer reviews he performed, the fees charged for each peer review and the fees he receives for his testimony at trial. Counsel also thoroughly cross examined Dr. Bazos concerning his basis for his opinion of lack of medical necessity, claiming that his opinion was contrary to the views expressed in Campbells Operative Orthopedics and that his opinion was reached based on his financial interests with the Defendant.

While, it is well recognized that compensation has a direct and vital bearing on credibility, the fact that Dr. Bazos had a great deal of experience testifying on behalf of insurance [*3]companies does not alone support an inference that his opinion is not honest in this case (see Scott v. Spanjer Bros., Inc., 298 F.2d 928). Dr. Bazos evidence cannot be disregarded simply because he is an "employee" of the Defendant. While employment or other relationship of a witness may be considered on the point of his credibility in weighing his evidence against opposing evidence, it is not by itself a sufficient reason for disregarding his testimony. Although the fact that Dr. Bazos testified on numerous cases on behalf of Insurance Companies may support the inference of bias, if direct unimpeached, uncontradicted, and reasonable testimony is shown which is consistent with Dr. Bazos finding of lack of medical necessity, no lawful finding can be made of the existence of bias (see Arnall Mills v. Smallwood, 68 F. 2d 57). And if any bias was established it would simply go to the weight given to the testimony (see Khan v. New York State Dept. Of Health, 17 App. Div. 3d 938). To establish the existence of bias sufficient to disregard Dr. Bazos testimony, Plaintiff would have to show that his opinion flowed from the claimed bias (see Cohen v. Mills, 271 App. Div. 2d 826).

The Court has assessed and accepted Dr. Bazos uncontradicted expert opinion and makes the following findings: (1) his testimony was credible and convincing (2) his opinion was medically and factually supported and (3) his opinion was not based on any alleged bias. Dr. Bazos' testimony supplemented his detailed peer review report and fully and explicitly set forth his reasons for the denial. Therefore, the Court finds that Defendant has met its prima facie burden of demonstrating lack of medical necessity for the services rendered, thus shifting the burden to Plaintiff to establish medical necessity. At trial, Plaintiff did not submit any rebuttal evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the services rendered to its assignor were medically necessary. Instead, Plaintiff relied solely upon its cross examination of Defendant's medical expert, Dr. Bazos. However, despite Plaintiff's counsel's skillful and thorough cross examination, he was unable to refute Dr. Bazos' testimony thus failing to meet its burden of establishing medical necessity.

Therefore based on the above findings, judgment is entered in favor of the Defendant. Plaintiff cause of action is hereby dismissed.

This constitutes the Decision and Order of the Court.

DATED: August 20, 2008

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Sylvia G. Ash, J.C.C.