Opinion
TS-300008/19
06-13-2019
UNITRIN ADVANTAGE INSURANCE COMPANY, Plaintiff, v. LAKE CHIROPRACTICE, PLLC a/a/a Sherri Lombardo, Defendant.
GOLDBERG, MILLER & RUBIN, Attorneys for Plaintiff, By: TIMOTHY R. BISHOP, ESQ, 60 East 42nd Street, Suite 520, New York, New York 10165, 646.863.1531 TONALAW, Attorneys for Defendant, By: CHRISTOPHER BECKER, ESQ., 870 Middle Country Road, St. James, New York 11780, 631.780.5355 ex 17
GOLDBERG, MILLER & RUBIN, Attorneys for Plaintiff, By: TIMOTHY R. BISHOP, ESQ, 60 East 42nd Street, Suite 520, New York, New York 10165, 646.863.1531
TONALAW, Attorneys for Defendant, By: CHRISTOPHER BECKER, ESQ., 870 Middle Country Road, St. James, New York 11780, 631.780.5355 ex 17
Sabrina B. Kraus, J.
BACKGROUND AND PROCEDURAL HISTORY
On November 8, 2015, Sherri Lombardo (Claimant) was allegedly injured while riding as a passenger in a motor vehicle owned and operated by Eric Rivera and insured through Plaintiff.
Claimant was taken to the hospital by ambulance and released. Claimant sought Chiropractic treatment from Defendant approximately one week after the accident, and was treated by Defendant for a period through January 2017.
Defendant submitted bills totaling $8,420.91 for various chiropractic procedures including MRIs, posture analysis, spinal manipulation, comparative muscle testing and therapeutic treatment.
Plaintiff denied the claim on the basis that it was not medically necessary, and that it exceeded the amount permitted pursuant to the fee schedule.
In August 2017, Defendant filed an arbitration seeking to contest Plaintiff's denial. In May 2018, the parties appeared before an Arbitrator, and in June 2018 the Arbitrator issued an award rejecting Plaintiff's peer review and its fee schedule disclaimers and granting Defendant's claim in the amount of $6,431.80. The award was affirmed by a Master Arbitrator in its entirety later that same month.
Plaintiff commenced this action seeking trial de novo , pursuant to a summons and complaint filed in Supreme Court, New York County on November 16, 2018, under Index Number 160675-2018.
Defendant appeared by counsel, and filed an answer dated December 19, 2018.
The action was transferred from Supreme Court to Civil Court on February 27, 2019.
The parties appeared for civil mediation on March 20, 2019 and the action was adjourned for trial to May 6, 2019.
On May 6, 2019, the parties entered into a stipulation waiving trial by jury and setting the matter down for a bench trial on June 13, 2019.
On June 13, 2019, the court held a bench trial and reserved decision.
TRIAL
The parties each stipulated to the other's prima facie case, that the denials were timely and that the proper amount pursuant to the fee schedule is $6431.80. The parties further stipulated that the sole issue for trial was medical necessity. The parties submitted ten exhibits in evidence on consent.
Both Dr. Bernardini and Dr. Berke testified at trial. The parties stipulated to the expertise of the two doctors.
As noted above, Claimant began chiropractic treatment with Defendant within one week of the accident in November of 2015. Dr. Ronald Bernardini was the Chiropractor who administered the treatment. Claimant received treatment four times a week through the date Dr. Berke examined her.
Dr. Michael Berke
On January 26, 2016, Claimant saw Dr. Michael N. Berke for an independent chiropractic examination (IME). Dr. Berke's report from the examination was submitted in evidence (Ex 1). Dr. Berke took a history from Claimant and performed orthopedic and neurological exams of Claimant as part of his chiropractic evaluation. Dr. Berke testified that he spent between 20-30 minutes examining the Claimant.
Dr. Berke testified that Claimant had normal range of motion. Dr. Berke could not recall whether he used a goniometer to perform the range of motion tests. Dr. Berke testified that he usually uses a goniometer, but not always, and that his visual measurements are nearly as accurate as those of a gonimeter.
Dr. Berke testified that he found Claimant's muscle strength appeared to be normal and that there was no evidence of muscle spasms or tenderness in the spinal regions. Dr. Berke found that there were no objective signs of inflammation.
Dr. Berke performed the following orthopedic tests on Claimant and found them all negative: toe walking; heel walking; Kemp's; cervical foraminal compression, straight leg raising; Ely's; Soto-Hall; leg lowering; SI joint compression and Bechterew's.
Dr. Berke observed that Claimant was able to perform a full squat and sit up from the examination table without difficulty.
Dr. Berke concluded that the injuries sustained by Claimant were casually related to the accident, and diagnosed Claimant with sprains of the Cervical and Lumbar areas which he found were both resolved at the time of his examination.
Dr. Berke concluded that despite Claimant's subjective complaints, no further chiropractic treatment was necessary for Claimant as of the date of his exam. Specifically he opined "... the claimant's spinal condition requires no further treatment from a chiropractic point of view. There is no necessity for household help, massage, physiotherapy, spinal manipulation ... There is no necessity for further spinal diagnostic testing (Ex 1, pg 3)."
Dr. Robert Bernardini
Dr. Bernardini issued a rebuttal in response to Dr. Berke's report. The rebuttal is dated May 18, 2018 (Ex 9).
Dr. Bernardini ordered an MRI of the cervical and lumbar spine of Claimant that was performed in February 2016. The MRI revealed disc protusions. Dr. Bernardini also referred Claimant for neurological testing.
Dr. Bernardini examined Claimant on 2/16/16 performing many of the same tests that Dr. Berke had performed, but, Dr. Bernardini found the results positive instead of negative. Dr. Bernardini performed additional examinations and testing on March 14, 2016, April 1, 2016, April 25, 2016, May 10, 2016, May 17, 2016, June 13, 2016 July 5 and 6, 2016, July 27, 2016, August 25, 2016, August 31, 2016 and continuing through January 2017.
Dr. Bernardini disagreed with Dr. Berke's conclusion that further treatment was unwarranted. Dr. Bernardini found that while Claimant was responding to treatment, her injuries were not resolved in early 2016, and that all treatments Claimant received between January 2016 and January 2017 were medically necessary.
In particular, Dr Bernardini opined that Dr. Berke was incorrect because Claimant continued to test positive on her physical exams, and he noted that sometimes on a particular day a patient may appear improved, but Dr. Berke still had a very limited scope of information compared to the information available to Dr. Bernardini.
DISCUSSION
Under No Fault Law claimants are entitled to recover for basic economic loss which Insurance Law § 5102(a)(1) defines as :
(1) All necessary expenses incurred for: (I) medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury. For the purpose of determining basic economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.
Some courts have defined a necessary medical expense to be for "... treatment or services that are reasonable in light of the patient's injury, subjective and objective evidence of the patient's complaints of pain, and the goals of evaluating and treating the patient ( Complete Medical Care Services of NY, PC v. State Farm Mutual Automobile Insurance Company 21 Misc 3d 436, 440 (2008) citing Fifth Avenue Pain Control Center v. Allstate Insurance Company 196 Misc 2d 801, 807 )."
A determination of medical necessity must be based on evidence in existence prior to the rendering of the service ( Foster Diagnostic Imaging, PC v. General Assur Co. 10 Misc 3d 428 ).
The purpose of the No Fault law is to "... deliver better protection for the insured and to pay off claims quickly (NY Legis Ann. 1973 p.298)." The intent is to permit the liberal recovery of money spent in the treatment of accident related injuries, and to encourage the prompt payment of claims without prolonged delay ( Vidra v. Shoman 59 AD2d 714, 716 ; Dermatossian v. NYCTA 67 NY2d 219, 225 ).
Initially, there is a presumption of medical necessity in favor of the insured ( Foster Diagnostic Imaging, PC v. General Assur Co. 10 Misc 3d 428 ). Thus, once a claimant establishes a prima facie case, the burden is on the insurance company to establish by a preponderance of credible evidence that the services were not medically necessary ( Nir v. Allstate Insurance Co. 7 Misc 3d 544,546 ). The defense must be supported by sufficient factual basis, and medical rationale for denying the claim ( Healing Hands Chiropractic, PC v. Nationwide Assur. Co. 5 Misc 3d 975 ).
"Where the .... insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the (Claimant) which must then present its own evidence of medical necessity [ Tremont Medical Diagnostic, PC v. Geico Insurance Co. 13 Misc 3d 131(A) ]."
Ultimately, the determination is a question of fact to be determined by the court at trial based upon the testimony of expert witnesses and the court's determination regarding the credibility of said testimony ( A-Quality Medical Supply v. Geico General Ins. Co. 39 Misc 3d 24 ).
The court credits the testimony of Dr. Bernardini that continued treatment was medically necessary for Claimant, over the testimony of Dr. Berke, that it was not necessary. The court found that Dr. Bernardini's testimony was more detailed and fact specific.
An IME is a snapshot of the injured parties medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert's opinion that at the time the examination was conducted the claimant did not need any further treatment or testing. As regards the need for future treatment, the IME is nothing more than an expert's prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment. ( Amato v. State Farm Ins. Co. , 30 Misc 3d 238, 242 ).
The court finds that Dr. Bernardini properly ordered additional testing and was in possession of both objective and subjective findings which correlated to support the conclusion that continued treatment was medically necessary. Dr. Bernardini possessed more information and was in a better position to make the determination than was Dr. Berke.
Based on the foregoing, the court finds that Plaintiff failed to establish a lack of medical necessity for the treatment question by a preponderance of credible evidence and that Defendant is entitled to a judgment on its counterclaim in the amount of $6,431.80 plus interest from August 21, 2017, along with attorneys' fees as provided by the insurance regulations, together with the statutory costs and disbursements of this action.
This constitutes the decision and order of this court.