[*1]
Daniel C. Cox D.C., P.C. v Erie Ins. Co.
2011 NY Slip Op 51194(U) [32 Misc 3d 1206(A)]
Decided on June 13, 2011
City Court Of Buffalo
Ogden, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 13, 2011
City Court of Buffalo


Daniel C. Cox D.C., P.C., a/a/o VALERIE LESNIOWSKI, Plaintiff,

against

Erie Insurance Company, Defendant.




21078



Daniel Morris, Esq,

Scott Mancuso, Esq.

E. Jeannette Ogden, J.



The Plaintiff medical provider, Daniel C. Cox, D.C., commenced this action to recover payment of first-party no-fault benefits for chiropractic services provided to its assignor, Valerie Lesniowski, [hereinafter referred to as the "insured"] for personal injuries that she sustained in an automobile accident. Defendant, who provided no fault insurance benefits to the insured, denied payment of benefits for said services on the grounds that they were not medically necessary, based upon the Independent Medical Examination Report of Dr. Melvin M. Brothman; an orthopedic surgeon.

The parties entered into a Stipulation which states that all but three (3) of the No Fault Claim forms referenced in the Plaintiff's Complaint were timely and properly sent from the Plaintiff to the Defendant; that the Defendant has not issued payment to any person, including the Plaintiff, for any of the claims referenced in the Complaint which are now overdue; that the Defendant sent timely and proper No Fault Denial Claim forms for each and all of the claims referenced in the Complaint excluding Causes of Action No.1, 67 & 159 and that the Plaintiff received timely and proper No Fault Claim forms for each and all of the claims referenced in the Complaint, excluding causes of action #1, 67 & 159.



The parties further stipulated that there are two issues to be decided at trial. The first is whether the Plaintiff properly submitted bills for the chiropractic treatment alleged in Causes of Action #1,67 & 159 of the Complaint, totaling $216.88.

The second issue is whether the chiropractic treatment rendered to the insured totaling $7,868.83 was medically necessary.

A Non Jury Trial on the aforementioned two issues was had before the undersigned on May 19, [*2]2011. The parties stipulated that they would not call witnesses and the two issues would be decided entirely on documentary submissions and oral arguments. The parties stipulated into evidence the independent medical examination report of Dr. Brothman and written submissions outlining their respective positions, along with the legal authority relied upon in support thereof.

The Court listened to the oral arguments of counsel and reserved decision. Now, having fully considered the stipulations of Counsel, the evidence presented and the oral argument offered in support of the respective positions of the parties, and due deliberation having been had thereon, the Court hereby makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Plaintiff, Dr. Daniel C. Cox, is the Assignee of the insured [Valerie Lesniowski], who sustained personal injury in an automobile accident that occurred on February 10, 2003. At the time of the

accident, she was insured under a no fault insurance policy issued by the Defendant, Erie Insurance Company. Subsequent to the accident, she received chiropractic care and treatment from February, 2003 until August, 2005. It appears from the report of Dr. Brothman that the chiropractic treatment received during this period was based upon the Defendant's receipt of a letter of medical necessity and payment for said treatment is not in dispute.

The insured received continued chiropractic care and treatment from Dr. Cox from August 31, 2005 until September 10, 2009. The no-fault benefits for payment of these services were properly assigned to Dr. Cox, who timely submitted claim forms to the Defendant in the amount of $7,868.83. The claim forms were timely received by the Defendant; payment thereof has not been made and is overdue.

The Plaintiff did not offer any evidence regarding the transmission of claims for the bills set forth in causes of action # 1, 67 and 159 of the Complaint. There was also no evidence regarding the payment or denial of payment of said bills. The stipulation of the parties expressly excluded the bills set forth in causes of action # 1, 67 and 159. The parties stipulated to Plaintiff's prima facie case regarding the bills in the remaining causes of action in the Plaintiff's complaint. The parties also stipulated to the Defendant's timely denial of the claims on the grounds of lack of medical necessity.

An independent medical examination and evaluation of the insured was performed by Melvin M. Brothman, M.D., F.A.C.S., an Orthopedic Surgeon, at the request of the Defendant. Thereafter, Dr. Brothman prepared a written report dated August 16, 2005. In his report, Dr. Brothman notes the report of Dr. Cameron Huckell, an orthopedic spine surgeon, dated June 1, 2004, indicating that the insured was experiencing on going pain. He also notes reports from Dr. Marc Tetro, an orthopedic upper extremity surgeon, who performed arthroscopic surgery on the insured in December of 2004 and treats her every six months. [*3]

Dr. Brothman's diagnosis of the insured states "status post arthroscopic surgery, right shoulder, for a labral tear, anterior impingement syndrome and persistent complaints; MRI evidence but no physical evidence of degenerative disc disease at L4-5 and 5-S1 of the lumbar spine."

He concluded that there is a causal relationship between the motor vehicle accident and the insured's complaints; that her current complaints are related to the motor vehicle accident and at the time of his examination, further treatment was required.

As far as chiropractic care for the insured was concerned, at that point in time, Dr. Brothman did not feel it would be of any value. "Further diagnostic testing was required." As a result, Defendant denied payment of claims for the chiropractic services rendered by Dr. Cox from August 31,2005 through September 10, 2009 on the grounds that they were not medically necessary.

A medical report in letter form from Dr. Cameron Huckell to Dr. Murak, family physician of the insured, dated December 20, 2005 indicates that "continued chiropractic care twice per week seems reasonable given the fact that it reduces her pain."

CONCLUSIONS OF LAW

To establish a prima facie case, the Plaintiff medical provider must submit proof of the transmission of its claim for no-fault benefits within 45 days and that the Defendant insurer received the claim but failed to pay or validly deny the claim within 30 days or failed to request verification. [Globe Surgical Supply v GEICO Ins. Co.,59 AD3d 129, 143, 871 N.Y.S.2d 263].

In order to be entitled to judgment, as a matter of law, a Plaintiff medical provider must submit evidentiary proof that the prescribed statutory billing forms were timely mailed to the insurer and received by the insurer, and that payment of the no-fault benefits was overdue. [Nyack Hospital, as Assignee of John Watson v Metropolitan Property & Casualty Insurance Company, 16 AD3d 564, 791 N.Y.S.2d 658].



As a result of the exclusion contained in the stipulation on this issue, coupled with the absence of any evidence regarding the Plaintiff's transmission of claims for payment of the 3 bills contained in Causes of Action # 1, 67 and 159 of the Complaint, the Plaintiff has failed to sustain its burden of proof with respect to Defendant's denial of payment for the aforementioned claims totaling $288.66. Accordingly, the 1st, 67th, and 159th Causes of Action in the Plaintiff's Complaint are hereby DISMISSED.

The Plaintiff has made a prima facie showing of entitlement to judgment, as a matter of law, in the amount of $7,868.83 by virtue of the stipulation, subject to the Court's finding on the issue of medical necessity.

A presumption of medical necessity attaches to a timely submitted no fault claim. Since the parties have stipulated to the Plaintiff's prima facie case, the medical necessity for the [*4]chiropractic services is presumed. The burden then shifts to the Defendant to rebut this presumption of medical necessity. The Court finds that Defendant has failed to sustain this burden for the following reasons.

A denial of no-fault coverage premised on a lack of medical necessity must be supported by competent evidence, such as an independent medical examination or peer review, or other proof, which sets forth a factual basis and a medical rationale for denying the claim. [Healing Hands Chiropractic PC v. Nationwide Assurance Co., 5 Misc 3d 975, 787 N.Y.S.2d 645; A.B. Medical Services PLLC v. Peerless Insurance Co., 13 Misc 3d 25, 822 N.Y.S.2d 223].

In order to sustain this burden, the Defendant must establish both a factual basis and medical rationale for the conclusion of Dr. Brothman that the chiropractic services provided to the insured were not medically necessary. [Nir v Allstate Insurance, 7 Misc 3d 544, 546-547, 796 N.Y.S.2d 857].

In determining whether the services rendered by the chiropractor are medically necessary, the Court must determine the generally accepted standard of care in the field of chiropractics and whether the provision of said services was in accordance with those generally accepted chiropractic standards.

The Plaintiff contends that expert testimony is required to establish what the generally accepted medical/professional practices are and why the chiropractic services rendered were not necessary according to generally accepted medical/professional standards.

Plaintiff further contends that the Independent Medical Examination report that formed the basis of the denial of chiropractic services for the insured was written by a medical doctor and not by an expert in chiropractics; that chiropractics is separate and distinct from the practice of medicine and therefore a medical doctor's standard of care is not controlling upon a chiropractor in the practice of his/her profession.

The Court rejects this argument. Although a chiropractor and orthopedic surgeon differ in techniques, they both deal with the human musculoskeletal system. Therefore, the generally accepted standard of care used by orthopedic surgeons may, as in this instance, be deemed controlling upon a chiropractor.

However, even though the Defendant's expert, Dr. Brothman, is qualified to render an opinion on the issue of medical necessity, his report is insufficient to rebut the presumption of medical necessity. The report of Dr. Brothman is conclusory and lacks a factual basis for denial of the claim.

Dr. Brothman's independent medical examination report merely stated that chiropractic treatment "would not be of any value" and "further diagnostic testing is required," despite an MRI report, given by the Western New York MRI Center, identifying issues with the Plaintiff's lumbar spine. [*5]Although Dr. Brothman physically examined the insured and provided an extensive report, he failed to support his conclusion with generally accepted medical/professional practice standards. Accordingly, the report fails to set forth an adequate medical rationale and is deficient to support a finding of lack of medical necessity.

In accordance herewith, judgment in favor of the Plaintiff is GRANTED in the amount of $7,868.83 with interest from the date of the commencement of the action, together with the costs, disbursements and statutory attorney's fees associated herewith.

__________________________________

Hon. E. Jeannette Ogden, BCCJ

Dated: June 13, 2011