People Who Live In Glass Houses Should Not Throw Stones

NO-FAULT – VERIFICATION – MEDICAL NECESSITY – WORKERS' COMPENSATION FEE SCHEDULE
Lenox Hill Radiology a/a/o Jose Almadovar v. New York Central Mut. Fire Ins. Co.
(Dist. Ct., Nassau Co., decided 7/25/2008)

Nassau County District Court Judge Andrew Engel has authored another instant classic on issues of no-fault claim verification and the workers' compensation fee schedule. Never shy of expressing his judicial sentiment on an issue or argument, Judge Engel ends his lengthy, citation-rich decision with:

Finally, that branch of the Plaintiff's motion which seeks the imposition of sanctions against the Defendant, pursuant to 22 N.Y.C.R.R. § 130-1, for alleged frivolous conduct, is denied. "People who live in glass houses should not throw stones."

Med providers' and insurers' houses, or lawyers' houses? Hold that question.

Plaintiff performed cervical and lumbar MRIs on January 4, 2002. Billed for $1,791.16 on April 5, 2002 (old Reg 68 rules). New York Central received the bill on April 11, 2002 and sent a verification request for records from the referring DC on April 24, 2002. Having received nothing within 30 days, New York Central sent a follow-up request on May 28, 2002. New York Central received the requested verification information on June 5, 2002, made partial payment of the bill in the amount of $1,571.24 on July 1, 2002, and denied the balance of $219.92, asserting that the fees charged for the MRIs in question were in excess of the Workers' Compensation fee schedule. Plaintiff commenced this action on July 15, 2002. New York Central moved and plaintiff crossmoved for summary judgment.

In denying New York Central's motion, Judge Engel agreed with plaintiff that New York Central had failed to submit proper proof in admissible form that plaintiff's bills were in excess of the appropriate Workers' Compensation Fee Schedule. The court found defense counsel's affirmation to be of no probative value, the statement of one of New York Central's litigation examiners regarding the correct fee schedule amounts to be "conclusory", and New York Central's reliance on an unreported federal court decision to be "misplaced." Judge Engel also rebuffed plaintiff's counsel's castigation of New York Central's verification requests, holding:

The Plaintiff accuses the Defendant of "us[ing] the verification protocols to delay payment of the claim, and than (sic) once it determined the services were medically necessary, sought out a different basis to refuse payment. The verification requests do not extend the time in which the defendant has to deny the claim unless the defendant bases its denial on the requested verification." (Hayes Affirmation 4/2/08) The Plaintiff further posits that "a failure by the insurer to issue a denial when it is in possession of the necessary information serves as a waiver of any right to deny a claim based on such information." (Hayes Affirmation 4/2/08) The Plaintiff does not cite any case law or regulation that supports either of these propositions. The controlling regulations and case law are, in fact, contrary to the Plaintiff's argument.

Similarly, the court denied plaintiff's cross motion for summary judgment or partial summary judgment, finding that plaintiff had failed to lay a proper business record foundation for the admission of its claim form:

The Plaintiff attempts to lay this foundation through the affidavit of Nicole Simeona, who advises the court that she is "employed by plaintiff's counsel[,] (Simeona Affidavit 4/3/08) not by the Plaintiff. Ms. Simeona further avers that she is intimately familiar with the administration of all aspects of the collection department." (Simeona Affidavit 4/3/08) She does not indicate whose collection department, the Plaintiff's or her employer's. Moreover, nowhere does Ms. Simeona allege that she has any knowledge of the Plaintiff's record keeping practices and the creation of the Plaintiff's claim form.

Which brings us back to where we started. Plaintiff's motion apparently included a request for sanctions against New York Central for alleged "frivolous conduct", which Judge Engel summarily denied with the "people who live in glass houses..." reference. Lawyers are people, too.