NO-FAULT – MEDICAL NECESSITY DEFENSE – UNSWORN IME REPORT
OS Tigris Acupuncture, P.C. a/a/o Janeth Agarpao v. Liberty Mut. Ins. Co.
(App. Term, 1st Dept., decided 10/7/2008)
No surprise here. The Appellate Term, First Department, AFFIRMED New York Civil's award of summary judgment to the plaintiff medical provider because: (1) plaintiff made its prima facie showing by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue; (2) the unsworn chiro's negative IME report was properly excluded from consideration; and (3) besides, that report only concluded that further acupuncture treatment was not necessary, and did not raise a question of fact about the medical necessity of the acupuncture treatment that the assignor had already received; and (4) Liberty did not produce competent evidence in support of its defense of the plaintiff's nonconformity with the applicable fee schedule.
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