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Civil Court, City of New York,


Index No. CV-709111-18/KI

Decided: November 29, 2022

Attorney for Plaintiff: Sara Diamond, Esq. (Of Counsel), Law Offices of Melissa Betancourt, PC, 2761 Bath Avenue, Suite B1 & B2, Brooklyn, New York 11214 Attorney for Defendants: Helen Mann Ruzhy, Esq., Law Offices of Tina Newsome-Lee, 485 Lexington Avenue, 7th Fl., New York, New York 10007

After a bench trial, this Court dismisses the complaint on the following grounds:

This action was brought by a provider seeking to recover assigned first-party no-fault benefits.

Here, the triable issue is the medical necessity of the treatment received by Joshua Lessy. The parties stipulated to: Plaintiff's timely submission of the claim, and Defendant's timely denial thus establishing their prima facie case; the expert qualifications of licensed Chiropractor Dr. Todd Aordkian, his peer review report, and the documents he reviewed.

At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity of the treatment or testing for which payment is sought (A.M. Med. Services, P.C. v Deerbrook Ins. Co., 18 Misc 3d 1139(A) (Civ Ct 2008)). At a minimum, Defendant must establish a factual basis and medical rationale for the lack of medical necessity of Plaintiff's services (see CityWide Social Work & Psy. Serv., P.L.L.C. v Travelers Indem. Co., 3 Misc. 3d 608 (Civ Ct 2004); Inwood Hill Med. P.C. v. Allstate Ins. Co., 3 Misc 3d 1110(A) (Civ Ct 2004). “The insurer may rebut the inference of medical necessity through a peer review and, if the peer review is not rebutted, the insurer is entitled to denial of the claim (e.g., A Khodadadi Radiology, P.C. v. NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131(A) (App Term 2007)).

According to the detailed credible testimony of Dr. Aordkian, the cervical collar, back support, cervical traction unit, and the TENS unit provided by plaintiff were not medically necessary. None of these devices met the criteria for the treatment of Mr. Lessy. Relying upon the medical treatise written by Panjabi and White, Dr. Aordkian opined the criteria for back support is where there are situations of clinical instability, a fracture or dislocation of a lumbar spine, scoliosis measuring more than 25 degrees, inactive spondylolisthesis with a pars fracture, and postoperative treatment in certain lumbar spine surgeries. Based on his review of the medical records, the Assignor sustained a musculoskeletal injury. Therefore, the treatment provided would be counteractive because it would decrease the range of motion. The cervical collar is used in conversative management of cervical spine fractures where surgery is not necessary. The collar around the fractured vertebra allows the bone to heal and tightens the damaged muscle and joint structures. Here, the Assignor sustained a soft tissue brain-type injury, therefore, it was counterintuitive to place a collar around these structures because movement is restricted. Traction is traditionally used for situations where there is a damaged disk, and the disk herniation is pressing on a nerve arm pain. Here, the medical records failed to document any radicular signs or symptoms along the upper extremities involving a specific nerve root compression demonstrated on the cervical spine MRI Study. Further, Dr. Aordkian credibly testified that there was no successful cervical traction demonstrated in the treatment. The criteria for use of a TENS unit occurs where therapy has been found to be beneficial, and then the Assignor can be prescribed a TENS unit on discharge once the active treatment ends. Dr. Aordkian testified the TENs unit was ordered for home use while the Assignor was under active treatment, therefore, the TENS unit was prescribed prematurely. The chiropractor who prescribed this TENS unit did not demonstrate a successful trial of the TENS unit therapy in the office.

Defendant's medical expert was very specific and detailed in explaining the basis for his medical opinion. The Court finds Dr. Aordkian's testimony to be medically sound and credible. Dr. Aordkian sufficiently demonstrated he relied on his review of the Assignor's medical records to reach his opinion that the services were not medically necessary for the Assignor's condition. Dr. Aordkian's testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the services (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins., 52 Misc. 3d 139(A) (App Term 2016)). Considering Dr. Aordkian testimony and the relevant medical records submitted to the Court, this Court finds that Defendant met its burden and provided sufficient proof that the procedures were not medically necessary.

Where the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity (see Prince, Richardson on Evidence §§ 3-104, 3-202 (Farrell 11th ed)); W. Tremont Med. Diagnostic, P.C. v. Geico Ins. Co., 13 Misc 3d 131(A) (App Term 2006)). Plaintiff called no witnesses to rebut the defendant's showing of a lack of medical necessity (see New Horizon Surgical Ctr., L.L.C, 52 Misc. 3d 139(A) Moreover, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary (MK Healthcare Med. PC v. Travelers Ins. Co., 76 Misc 3d 1205(A) (Civ Ct 2022)). Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant's showing.

Defendant met its burden of establishing that the services rendered to Joshua Plessy by Plaintiff were not medically necessary. No rebuttal was offered by the plaintiff. This case is dismissed.

This constitutes the decision and order of the Court.

Ellen E. Edwards, J.

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Docket No: Index No. CV-709111-18/KI

Decided: November 29, 2022

Court: Civil Court, City of New York,

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