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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2024 NY Slip Op 00599 [224 AD3d 428]
Regular Panel Decision
Feb 06, 2024

Matter of New Millennium Pain & Spine Medicine, P.C. v. Garrison Prop. & Cas. Ins. Co.

This case involves two appeals by New Millennium Pain & Spine Medicine, P.C. against Garrison Property & Casualty Insurance Company and GEICO Casualty Company. New Millennium sought to vacate master arbitration awards that denied its claims for no-fault benefits for medical services. The Supreme Court denied these applications. The Appellate Division, First Department, affirmed the Supreme Court's decisions, stating that an arbitrator's award will not be set aside unless it is irrational. The court also addressed the argument regarding a 20% wage offset in no-fault benefits, finding it unavailing under Insurance Law § 5102 (b). Ultimately, New Millennium was not entitled to attorneys' fees as it was not the prevailing party.

No-fault benefitsarbitration awardvacaturinsurance lawwage offsetappellate reviewmedical servicesno-fault policy exhaustionattorneys' feesCPLR Article 75
References
8
Case No. MISSING
Regular Panel Decision
May 14, 2014

Forest Rehabilitation Medicine PC v. Allstate Insurance

Plaintiff Forest Rehabilitation Medicine PC sued defendant Allstate to recover $3,490 for no-fault medical benefits provided to assignor Tracy Fertitta. The core issue was the medical necessity of "Calmare pain therapy" (scrambler therapy), a novel treatment. The court conducted a bench trial, hearing expert testimony from both sides. Dr. Ayman Hadhoud, for the defense, argued the treatment was not medically necessary, not cost-effective, and essentially a form of physical therapy. Dr. Jack D’Angelo, for the plaintiff, countered that the therapy, though new, had FDA approval, was used by the military, and reduced the assignor's pain levels. Applying the Frye standard, the court found the evidence regarding Calmare scrambler therapy reliable and ruled it was medically necessary for Ms. Fertitta's pain management. Consequently, judgment was awarded to the plaintiff, Forest Rehabilitation Medicine PC, for $3,490 plus attorney's fees and interest.

No-Fault InsuranceMedical NecessityCalmare Pain TherapyScrambler TherapyNovel TreatmentFrye StandardExpert TestimonyPain ManagementFDA ApprovalCervical Radiculopathy
References
14
Case No. ADJ7422993
Regular
Apr 06, 2015

SHIRLEY LESCALLETT vs. WAL-MART, ACE AMERICAN INSURANCE, YORK RISK SERVICES

In this workers' compensation case, the applicant sought to select a pain management specialist as her primary treating physician. The employer's Medical Provider Network (MPN) did not have any pain management specialists within the 15-mile/30-minute access standard for primary physicians, though it did have specialists within a 30-mile/60-minute radius. The Appeals Board affirmed the WCJ's decision, holding that if an applicant chooses a specialist for their primary care, the MPN must provide at least three physicians of that specialty within a 15-mile/30-minute radius. Since the defendant's MPN failed to meet this standard for pain management specialists, the applicant was permitted to choose one outside the MPN. A dissenting opinion argued that the 30-mile/60-minute standard for specialists should apply, allowing the applicant to select a physician within that broader radius from the MPN.

MPNMedical Provider NetworkPrimary Treating PhysicianSpecialistAccess StandardsAdministrative Director's RulePain Management PhysicianGeographic RadiusLabor CodeWorkers' Compensation Appeals Board
References
3
Case No. ADJ2757896
Regular
Sep 24, 2018

JOAQUIN GONZALEZ vs. PENHALL INTERNATIONAL CORP, HARTFORD INSURANCE CO.

The Workers' Compensation Appeals Board affirmed a prior order allowing the applicant to seek treatment outside the employer's medical provider network (MPN) for pain management and internal medicine specialists. This decision was based on the employer's failure to schedule timely appointments with specialists within the MPN, as required by regulations. The Board declined to address the employer's request to limit the duration of out-of-network treatment, as this issue was not raised or adjudicated in the initial proceedings. The applicant had sustained a 2005 injury resulting in 100% permanent disability.

Workers' Compensation Appeals BoardMPNMedical Provider NetworkReconsiderationFindings OrderAdministrative Law JudgePermanent DisabilityFuture Medical TreatmentPain ManagementInternal Medicine
References
4
Case No. 2020 NY Slip Op 04896 [186 AD3d 1770]
Regular Panel Decision
Sep 03, 2020

Matter of Wen Liu v. Division of Gen. Internal Medicine, Mount Sinai Sch. of Medicine

Wen Liu, a data programming analyst, filed for workers' compensation benefits in May 2010, claiming a neck injury from a June 5, 2008 fall at work due to dizziness. The employer failed to timely file a notice of controversy, but a Workers' Compensation Law Judge (WCLJ) disallowed the claim, finding no causal connection between the injuries and employment. The Workers' Compensation Board upheld this decision, which the claimant appealed. The Appellate Division affirmed the Board's decision, emphasizing that the employer's procedural failure did not absolve the claimant of proving a causal relationship. Substantial evidence supported the Board's rejection of the claimant's medical proof, as emergency room records contradicted her later descriptions of the incident and indicated pre-existing conditions.

Workers' CompensationCausationMedical EvidenceTimely NoticeBurden of ProofInjuryFallDizzinessNeck InjuryCarpal Tunnel Syndrome
References
7
Case No. MISSING
Regular Panel Decision
May 05, 2000

Pain Resource Center v. Travelers Insurance

This case addresses a dispute regarding the payment of first-party no-fault benefits to a health provider, Pain Resource Center, as the assignee of John Hiotis, who was injured in an auto accident. The defendant, Travelers Ins. Co., challenged the validity of the assignment and the necessity of the medical services provided. The court affirmed the validity of the assignment under New York's Insurance Law and related regulations. However, based on conflicting expert testimonies, the court limited the compensable medical services to six hours and awarded the plaintiff $566.10, along with statutory interest and attorney's fees.

No-Fault InsuranceFirst-Party BenefitsAssignment ValidityMedical ServicesPeer ReviewInsurance LawHealth Provider ClaimAutomobile AccidentDamagesStatutory Interpretation
References
5
Case No. 2017 NY Slip Op 06635
Regular Panel Decision
Sep 26, 2017

Hamburg v. New York University School of Medicine

Plaintiff, Carole Hamburg, M.D., sued New York University School of Medicine for age discrimination under the New York City Human Rights Law and for breach of contract after her employment was not renewed. The Supreme Court granted NYU summary judgment on the age discrimination claim but denied it for the breach of contract claim. On appeal, the Appellate Division, First Department, affirmed the dismissal of the age discrimination claim, finding no evidence of discriminatory intent in NYU's restructuring and phase-out of the general radiology section. The court further modified the lower court's decision, granting summary judgment to NYU on the breach of contract claim, ruling that Dr. Hamburg was not contractually entitled to a year's notice of non-renewal as her non-tenure-eligible position automatically terminated unless renewed. Consequently, the entire complaint was dismissed.

Age DiscriminationEmployment ContractFaculty EmploymentUniversity AdministrationDepartment RestructuringSummary JudgmentAppellate ReviewContract InterpretationTenure-EligibleNon-Tenure Track
References
19
Case No. MISSING
Regular Panel Decision

Universal Acupuncture Pain Services, P.C. v. Lumbermens Mutual Casualty Co.

The New York court addresses a motion for reargument by Universal Acupuncture Pain Services, P.C. against Lumbermens Mutual Casualty Company concerning no-fault insurance claims. The central legal question is whether an expert witness's peer review report, created after a timely denial of a no-fault claim, can be admitted at trial, specifically under the Cirucci precedent regarding the specificity of denial grounds. The court grants the motion for reargument but upholds its initial ruling, which granted partial summary judgment on one of five claims. It clarifies that the expert's testimony must be strictly limited to the "concurrent or excessive care" ground initially stated by the insurer, excluding any new grounds like "medical necessity" not specified in the original denial. The court emphasizes that the issue of whether different treatment modalities constitute concurrent care for the same condition requires a trial for factual determination.

No-Fault InsurancePeer ReviewExpert Witness TestimonySummary Judgment MotionInsurance Law InterpretationSpecificity of DenialConcurrent Medical CareAcupuncture TreatmentChiropractic TreatmentPhysical Therapy
References
7
Case No. MISSING
Regular Panel Decision

Icahn School of Medicine at Mount Sinai v. Neurocrine Biosciences, Inc.

The plaintiff, Icahn School of Medicine at Mount Sinai, moved to strike several affirmative defenses and dismiss corresponding counterclaims brought by the defendant, Neurocrine Biosciences, Inc. The core dispute involves a patent license agreement and an alleged unlicensed sublicense by Neurocrine to AbbVie. The court granted Mt. Sinai's motion, striking Neurocrine's affirmative defenses for patent invalidity, non-infringement, and patent misuse. The decision emphasized that Neurocrine was estopped from challenging patent validity due to prior benefits from the license and clarified that Mt. Sinai's damages claim was for breach of contract, not future royalties. Consequently, Neurocrine's related declaratory judgment counterclaims were also dismissed.

Patent invalidityNon-infringementPatent misuseBreach of contractLicense agreementSublicenseDeclaratory judgmentMotion to strikeAffirmative defensesEstoppel
References
23
Case No. ADJ9145724
Regular
Jun 01, 2015

ARZAGA, JOSE vs. CROWN AUTOMOTIVE, INC., AMTRUST NORTH AMERICA

This case involves an applicant seeking to select a pain management specialist outside his employer's Medical Provider Network (MPN). The applicant argued the MPN failed to provide a qualifying specialist within the required 15-mile/30-minute access standard for a primary treating physician. The Board denied the employer's petition for reconsideration, affirming the applicant's right to choose an out-of-network physician and reimbursement for investigative costs. The majority reasoned that the MPN must meet the closer access standard for a primary treating physician, even if that physician is a specialist. A dissenting opinion argued that a specialist, when chosen as a primary treating physician, should fall under the 30-mile/60-minute access standard for specialists.

Medical Provider NetworkMPNprimary treating physicianpain management specialistaccess standardAdministrative Director's Rule 9767.5investigative costsLabor Code section 5703Lescallett v. Wal-MartMartinez v. New French Bakery
References
2
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