Monday, March 23, 2009

No-Fault Payments to Licensed Massage Therapists

Over at No-Fault Paradise Dave Gottlieb reports that Kings County Civil Court Judge Genine Edwards recently "reversed" her November 2007 bench trial decision in Adam Marigliano LMT a/s/o Jennifer Rivadeneyra v. State Farm Mut. Ins. Co., Index No. 92971/2006 (Civil Court, Kings Co.), found that State Farm "failed to meet its burden" of proving lack of medical necessity, and granted judgment in favor of the plaintiff.

Larry Rogak, who represents State Farm in this case, wrote about the original decision back in January 2008, and reported that Judge Edwards had concluded that "a licensed massage therapist is not eligible to receive no fault benefits", based on decisions from Nassau County District Court and the Third Department.  Larry queried, "Could this be the beginning of the end of no-fault suits from massage therapists?"

Dave Barshay of Baker Sanders, et al., who represents the plaintiff LMT, didn't think so, and apparently obtained this May 30, 2008 letter from a principal examiner of the New York State Insurance Department's Property Bureau (not the OGC), who concluded that "services provided by a licensed massage therapist that are necessary and related to an auto accident are eligible for reimbursement pursuant to the No-Fault law."

Baker Sanders via Gottlieb's NFP is now declaring itself the winner on this issue, but Rogak won't concede, noting in his comment to that post that "[c]uriously, Judge Edwards did not address at all, in her 'clarification decision,' her earlier ruling that LMTs are not entitled to no-fault benefits. The story is not over."

Now, neither the original decision nor the recent "clarification" decision has been posted or is available online, so we can only watch and listen to the two sides' reports of what the court said and re-said.  The eCourts' listing for this case does indicate that an "[a]ppeal [is] [p]ending", so perhaps we will eventually hear from the Appellate Term, Second Department, on this issue. 

1 comment:

D. Barshay said...

It was my appeal, which I will probably now withdraw, as my client is no longer aggrieved by the decision. I welcome Larry to appeal the new decision. It would me nice to finally get an amicus from SID in favor of a plaintiff. Maybe.