Boulevard Multispec Med., P.C. v. Tri-State Consumer Ins. Co.

• Citation: 982 N.Y.S.2d 864,2014 N.Y. Slip Op. 24080,43 Misc.3d 802
• Parties: BOULEVARD MULTISPEC MEDICAL, P.C., a/a/o Phillip Sansone, Plaintiff, v. TRI–STATE CONSUMER INSURANCE COMPANY, Defendant.
• Decision Date: 26 March 2014
• Court: New York District Court

43 Misc.3d 802
982 N.Y.S.2d 864
2014 N.Y. Slip Op. 24080

BOULEVARD MULTISPEC MEDICAL, P.C., a/a/o Phillip Sansone, Plaintiff,
v.
TRI–STATE CONSUMER INSURANCE COMPANY, Defendant.

District Court, Nassau County, New York.

March 26, 2014.

[982 N.Y.S.2d 865]

Israel, Israel & Purdy, for Plaintiff.

Law Office of Rhonda Barry, for Defendant.

FRED J. HIRSH, J.

This motion for summary judgment raises the issue of whether there must be a connection between an Independent Medical Examination (“IME”) that a claimant fails to attend and the treatment in question for the failure to attend the IME to serve as a basis for denying a no-fault claim and dismissing this action.

Boulevard Multispec Medical, P.C.(“Boulevard”) sues as assignee of Phillip Sansone (“Sansone”) to recover first party no-fault benefits for Functional Capacity Evaluation performed on March 11, 2013 and chiropractic and physical therapy treatment provided to Sansone on March 1 and March 8, 2013.

Defendant Tri–State Consumer Insurance Company (“Tri–State”) timely denied all three claims on the grounds the treatment was not medically necessary based upon the IME report of J. Serge Parisien, M.D. conducted on February 12, 2013. Dr. Parisien found Sansone had a resolved sprain/strain of the cervical spine and a resolved sprain of the left shoulder. Dr, Parisien concluded Sansone did not need any further orthopedic treatment, physical

[982 N.Y.S.2d 866]

or message therapy and any further diagnostic testing.

Prior to the dates of the treatment in question, Tri–State had requested Sansone appear for an IME to be performed by Dr. Alain Delachapelle, a psychiatrist. Dr. Delachapelle states he was in his office on the dates the IMEs were supposed to be conducted, and Sansone never appeared for the IME.

Tri-state timely denied Boulevard's claims for the aforementioned services on the grounds the services were not medically necessary and on the grounds Sansone had failed to appear for the psychiatric IME to be conducted by Dr. Delachapelle.

Boulevard submits an affirmation from Gordon Davis, D.O. in opposition to the motion in which Dr. Davis states he has reviewed the medical reports for the treatment and testing involved in this action, prior treatment provided by Boulevard to Sansone and the IME report of Dr. Parisien and concludes the treatment and testing were medically appropriate.

DISCUSSION A. Medical Necessity

An insurer establishes an entitlement to summary judgment on the grounds medical treatment and/or testing were not medically necessary by presenting proof in evidentiary form establishing a factual basis and medical rationale for concluding the treatment and testing was not medically necessary. Total Equipment, LLC v. Mercury Cas. Co., 42 Misc.3d 131(A), 2013 WL 6840278 (App.Term 9th & 10th Jud. Dists.2013); and Right Aid Diagnostic Medicine, P.C. v. Geico Ins. Co., 41 Misc.3d 140(A), 2013 WL 6360639 (App.Term 2nd 11th & 13th Jud. Dists.2013).

If the insurer presents such evidence, the burden of proof shifts to the plaintiff to present proof in evidentiary form rebutting the proof of lack of medical necessity. West Tremont Medical Diagnostic P.C. v. Geico Ins. Co., 13 Misc.3d 131(A), 2006 WL 2829826 (App.Term 2nd & 11th Jud. Dists.2006).

Even if the court finds Dr. Parisien's IME report sufficient to meet defendant's burden, the affirmation of Dr. Davis is sufficient to establish a factual basis and medical rationale for the testing and treatment. Bath Medical Supply, Inc. v. New York Central Mut. Fire Ins. Co., 30 Misc.3d 137(A), 2011 WL 565328 (App.Term 2nd, 11th & 13th Jud. Dists.2011); and Vincent Medical Services, P.C. v. Geico Ins. Co., 29 Misc.3d 141(A), 2010 WL 5116892 (App. Term 2nd, 11th & 13th Jud. Dists.2010).

The different opinions expressed by the medical experts regarding the medical...