Pardon this brief interruption for no-fault

From time to time I'm going to post no-fault cases.  Not because anyone cares, but so that I will have a place to find them.  Nothing to see here.

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 2010 NY Slip Op 20308 (Civ Ct City NY, Kings County, 2010)

It should be noted that the surgery section of the Fee Schedule denotes different percentages of payment based on whether a participating surgeon is acting as a "Surgical Assistant" or a "Co-Surgeon". A Surgical Assistant bills at 16%, while Co-Surgeons are directed to apportion billing in relation to the responsibility and work done. (See New York Workers' Compensation Fee Schedule, Surgery, page 4). Defendant's witness did not offer testimony regarding whether Plaintiff should have billed as a Surgical Assistant or a Co-Surgeon. Plaintiff's rebuttal witness, Dr. Giugliano , testified that the classifications are interchangeable and he was entitled to bill as a co-surgeon. Absent proof to the contrary, the Court finds that Plaintiff was entitled to bill as a Co-Surgeon under the Fee Schedule.

With respect to Plaintiff utilizing the surgery CPT codes, the Court finds that Plaintiff successfully rebutted Defendant's testimony and Plaintiff was entitled to use these CPT codes as the procedures were not listed under the chiropractic fee schedule. When a charge for a reimbursable service has not been scheduled by the superintendent, then the provider shall establish a fee consistent with other fees for comparable procedures shown in such schedule subject to review by the insurer. Id; See also Studin v. Allstate Ins. Co., 152 Misc 2d 221 (NY Dist. Ct. 1991). Therefore, the Court finds that Plaintiff established that the procedures were properly billed pursuant to the Fee Schedule and Plaintiff is entitled to be reimbursed for the services performed.

Family Care Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51414(U) (Civ Ct City NY, NY County)

As MVAIC has submitted an affidavit swearing that plaintiff's assignor did not file a notice of intention to make a claim, police report or household affidavit, defendant's moving papers make a prima facie showing that plaintiff's assignor is not a "qualified person" (Insurance Law § 5202[b]) and, thus, that he is not a "covered person" (Insurance Law § 5221[b][2]).[FN1] Plaintiff's first argument in opposition is that defendant may not raise this "issue" to "obviate the 30-day requirement which would frustrate the purpose and objective of the No-Fault Law" (aff. in opp., para. 4).Plaintiff is incorrect.

In Hospital for Joint Diseases v Travelers Property Cas. Ins. Co., 9 NY3d 312, 849 NYS2d 473 (2007), the Court of Appeals recognized "a narrow exception to this preclusion remedy for situations where an insurance company raises a defense of lack of coverage (citation omitted). In such cases, an insurer who fails to issue a timely disclaimer is not prohibited from later raising the defense because the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed' (citation omitted)".The Appellate Division, First Department recently held that, like insurers raising lack of coverage, MVAIC may raise the issue of lack of qualification at any time, and this issue is not subject to the thirty-day preclusion rule. MVAIC v Interboro Medical Care & Diagnostic PC, 73 AD23d 667, 902 NYS2d 45 (1st Dept 2010). [*3]Plaintiff's second argument in opposition is that defendant improperly sent verification requests to plaintiff and its attorneys, rather than to plaintiff's assignor Mr. Shalina. This argument ignores the documents submitted on the motion. Plaintiff's NF-3 lists only "N/A, N/A, NY 11235" as Mr. Shalina's address. As defendant claims there was no record of Mr. Shalina in its files, it would have been impossible for defendant to send anything to Mr. Shalina without having been given his address by plaintiff.

In this case, plaintiff apparently rendered services to "Mr. Shalina" (assuming that was his real name) on five separate occasions without ever obtaining any identification or proof of address. Perhaps because plaintiff had no other place to send the bill, it sent the bill to MVAIC. Because plaintiff's assignor, Mr. Shalina, never qualified for benefits from MVAIC, his assignee, plaintiff, who stands in his shoes, is not entitled to benefits from defendant either.

The bold is mine. Nevermind, no bold.

One more thing.  Roy Mura posted about a new circular letter re: cancellation for lack of payment.


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