BEHAVIORAL v. Allstate Ins. Co.

• Decision Date: 11 February 2004
• Citation: 3 Misc.3d 246,776 N.Y.S.2d 178
• Parties: BEHAVIORAL DIAGNOSTICS, as Assignee of MARIA AREVALO and Others, Plaintiff,<BR>v.<BR>ALLSTATE INSURANCE COMPANY, Defendant.
• Court: New York Civil Court

3 Misc.3d 246
776 N.Y.S.2d 178

BEHAVIORAL DIAGNOSTICS, as Assignee of MARIA AREVALO and Others, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant.

February 11, 2004.

Baker & Barshay, LLP, Hauppage (Joaquin Lopez of counsel), for plaintiff.

Peter C. Merani, New York City (Samuel Kamara of counsel), for defendant.

OPINION OF THE COURT

ELLEN GESMER, J.

[3 Misc.3d 247]

Plaintiff Behavioral Diagnostics brings this action to obtain payment from defendant Allstate for services rendered by plaintiff to three of its patients, Marina Shaulov, Dwayne Dowdell and Maria Arevalo.^[*] All three patients are insured by defendant Allstate under New York State No-Fault Insurance Law § 5101 et seq., and all three assigned their insurance benefits to plaintiff. The court conducted a full trial of this matter on January 26, 2004 and makes the following findings.

Facts and Procedural History

Plaintiff's assignors were all in motor vehicle accidents. They each received medical treatment from plaintiff Behavioral Diagnostics. The parties stipulated that the plaintiff had sent proper and timely verifications of claims, as required by the regulations of the Insurance Department (11 NYCRR 65-2.4), to Allstate; that plaintiff was the assignee of the three patients; and that the defendant had sent proper and timely denials of the claims, as required by 11 NYCRR 65-3.8. For each of the three patients, plaintiff sought payment from defendant for $194.57 for a diagnostic interview; $67.24 for "record evaluation"; $975.10 for seven hours of psychological testing; and $103.31 for "Interpretation/Explanation of Results."

Allstate paid for the psychiatric interview for each patient, but denied payment of the other services based on its determination that they were not "medically necessary" as provided by 11 NYCRR 65-3.8 (b) (4).

Since the parties stipulated that the plaintiff had sent proper and timely verifications of claims, as required by 11 NYCRR 65-2.4, that plaintiff was the assignee of the three patients, and that the defendant had sent proper and timely denials of the claims, as required by 11 NYCRR 65-3.8, plaintiff met its burden of proving its claim (see Amaze Med. Supply Inc. v Eagle Ins. Co., 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]; Liberty Queens Med., PC. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists 2002]).

Consequently, the only issue to be determined at trial was whether the services rendered were medically necessary, as defined by Insurance Law § 5102 (a) (1). While there had been some uncertainty in the courts as to whether plaintiff bore the burden of showing medical necessity, or whether it was the

[3 Misc.3d 248]

defendant's burden to show lack of medical necessity, it is now clear in this judicial district that the burden rests on defendant to prove that the services rendered were not medically necessary (Choicenet Chiropractic P.C. v Allstate Ins. Co., 2003 NY Slip Op 50672[U] [App Term, 2d & 11th Jud Dists 2003]; A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 [App Term, 2d Dept 2003]).

In support of its case, defendant presented the testimony of Dr. Michael Rosenfeld, who had conducted a peer review of the records of Ms. Shaulov, and Dr. Yakov Burstein, who had conducted peer reviews of Mr. Dowdell and Ms. Arevalo. Both Dr. Rosenfeld and Dr. Burstein are licensed psychologists with many years of experience in the field, and were qualified by the court to give expert testimony. Both Dr. Rosenfeld and Dr. Burstein testified that the diagnostic interviews were medically necessary. Dr. Burstein did not state any opinion as to the medical necessity for the record evaluation of Ms. Arevalo's file. Both doctors testified with a reasonable degree of...