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District Court, Nassau County, New York.


Decided: December 01, 2004

Roe, Wallace, Esteve, Taroff & Taitz, LLP, for plaintiff. Karen C. Grant, for defendant.


Can a medical provider recover payment from an injured worker who received a lump sum settlement award from the State of New York Workers' Compensation Board where the medical provider has failed to follow the requirements of the Workers' Compensation statutes, rules and regulations?

Can the medical provider use Workers' Compensation Law Rules and Regulations Section 325-1.23 as a basis of liability where the medical provider fails to obtain permission from the Workers' Compensation Board to treat plaintiff?

Is the defendant liable based upon an account stated?


Plaintiff has moved for summary judgment to recover the sum of $10,010.56 for professional services rendered to plaintiff based upon breach of contract (1st cause of action) and account stated (2nd cause of action).

In support of plaintiff's motion, plaintiff submits the affidavit of David Zelefsky (officer of Valley Stream Rehabilitation), who contends that plaintiff received physical therapy services from plaintiff from June 4, 1997 to July 14, 1998.   According to the affidavit of Mr. Zelefsky, defendant executed the following agreement to be personally responsible for the fees charged by plaintiff under the following circumstances:

In the event that I fail to prosecute the claim for Workers' Compensation for this illness or condition or it is determined by the Workers' Compensation Board that the illness or condition is not a result of a compensable Workers' Compensation case, I, /s/ Lynda Cash, hereby agree to pay Dr. (address) his usual and customary fees for services rendered to the above named claimant in the above identified case.

Date 6/4/97;  Signature /s/ Lynda Cash

Plaintiff states that it cooperated with defendant's attorney Mr. Alberts, by providing medical reports for defendant's Workers' Compensation hearing.   Defendant received an award of $12,500.00 in September of 2001.

Plaintiff requested payment from defendant on September 26, 2001 in the amount of $10,010.56.   Plaintiff contends that further letters were sent to defendant's attorney's office on January 24, 2002, and February 13, 2002, requesting payment.   Plaintiff contends that no objection was received from defendant concerning the billing. Thus, plaintiff states that defendant is personally liable based upon the agreement executed.

Defendant claims that no sums are owed to plaintiff for several reasons.   Plaintiff's attorney sent numerous letters objecting to plaintiff's claim.   On September 18, 2001, a letter was sent stating that no approval was received for the treatment rendered to plaintiff and no proper forms were filed with the carrier.   Defendant's attorney, Mr. Alberts further writes, “Additionally, it is unfair to bill the claimant for services rendered without approval, and violation of the statute.”

Mr. Alberts also forwarded a letter, dated February 19, 2002, objecting to the plaintiff's claims.   This letter states in part:  “It is my understanding that none of those services were authorized by the carrier.   As a doctor who practices workers' compensation, and who is coded by the Workers' Compensation Board, you should be aware that authorization by the carrier is required before you can provide physical therapy services above the threshold amount.   As you are also well aware, Board Rules require that you send copies of reports, including requests for authorization, to the Board, to the carrier, and to the claimant's legal representative, in this case, myself.   Apparently, you treated the claimant and somehow had lead her to believe, that the services were appropriate.   You did not disclose the fact that the services were not authorized, according to Board Rules, and that the claimant might be liable for payment in the future.   Given the fact that you did not inform the claimant, and given the fact that you violated Board Rules, I am of the opinion that the claimant is not responsible for this bill.”

Mr. Alberts sent a further letter on July 12, 2002, addressed to Independent Recoveries, Inc., stating that payment would not be made because:

It appears that Valley Rehabilitation & Medical was not paid for their services because they did not follow the Board Rules and the statute.   Physical therapy must be approved by the carrier and although, I have been representing the claimant for many years, I have not received proper reports with requests.   It is improper for them to provide services to a lay claimant who has no knowledge of the statute, and then try to collect for services rendered improperly and unlawfully.   They are also required to submit reports in a timely fashion and evidently those reports were not submitted in a timely fashion.

The law also requires submission of reports, not only to the carrier and to the Board, but copies to myself, the claimant's legal representative.   This was not done.

Since you are the agent of Valley Rehabilitation & Medical Complex, I suggest that you consider your position carefully, because I am about to file a formal complaint with the Attorney General, with the Workers' Compensation Board, and with the Department of Health.   I will do this in thirty days unless all attempts to coerce the claimant into paying for services rendered unlawfully, ceases.

On August 30, 2002 another letter was sent, again stating that payment would not be forthcoming because plaintiff didn't follow the rules and procedures required by the Workers' Compensation statute for filing the claim and obtaining the necessary authorization by the carrier.


Workers' Compensation Law, Rules and Regulations 325-1.23 permits an authorized doctor to obtain an agreement (such as the one in this case set forth above) from a claimant providing that he/she will be liable in the event that:

(a)the claimant fails to prosecute a workers' compensation claim;  or

(b)that the claimant's illness or condition is determined by the Workers' Compensation Board that the foregoing is not covered by Workers' Compensation.

In the case at bar, the evidence demonstrates that the foregoing conditions were never met which would entitle plaintiff to recover any sums from defendant.   The facts demonstrate that plaintiff did make a Workers' Compensation claim which was determined to be covered by the Workers' Compensation statute.

 The plaintiff is required to collect any fees owed for medical services rendered from the employer (carrier) and not from the claimant.   See, Ellis Hospital v. Symonds, 96 Misc.2d 643, 409 N.Y.S.2d 630 (County Ct., Saratoga Cty. [1978] );  Tandet v. Levolite Co., Inc., 22 N.Y.S.2d 557, (App.Term, 1st Dept. [1940] );  Sprague v. Spencer, 172 Misc. 123, 14 N.Y.S.2d 673 (N.Y.Sup., 1939);  109 N.Y. Jur.2d Workers' Compensation, Sec. 106.

 Plaintiff failed to properly file the necessary documentation to obtain approval for its treatment of the defendant through the framework set up by the Workers' Compensation Board.   Any billing exceeding $500.00 for physical therapy must be specifically approved, which plaintiff failed to accomplish.   Plaintiff is trying to circumvent the mandates of the Workers' Compensation statutory framework by relying upon an agreement which has no relevance to the factual posture of this case.   See, Workers' Compensation Law Section 13-f;  Workers' Compensation Rules and Regulations Sec. 325-1.4.

 There cannot be an account stated because plaintiff failed to properly file the necessary forms and obtain approval for the medical services rendered.   Furthermore, the Court finds that defendant timely objected to the bills and thus, no account stated was established.   See, Wayne County Vinegar & Cider Corp. v. Schorr's Famous, 118 Misc.2d 52, 460 N.Y.S.2d 209 (N.Y.City Civ.Ct.1983).

Based upon the foregoing, plaintiff's claim is barred and the action dismissed with prejudice.