Great Result for Mark S. Zemcik: Congratulations to Mark S. Zemcik for a great result on Advanced Orthopedics v State Farm, an AAA case. The amount claimed in the Arbitration Request, was $ 6,343.25. The decision is worth a quick read. Great work Mark!
“It is well settled that a health care provider establishes its prima facie entitlement to No-Fault benefits as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of No-Fault benefits were overdue. Westchester Medical Center v. Lincoln General Insurance Company, 60 A.D.3d 1045, 877 N.Y.S.2d 340 (2nd Dept. 2009); Mary Immaculate Hospital v. Allstate Insurance Company, 5 A.D.3d 742, 774 N.Y.S.2d 564 (2nd Dept. 2004). Applicant submits an NF-10 denial of claim form for what it claims is the bill at issue in this case. Respondent argues that this denial does not satisfy Applicant’s prima facie burden, as the NF-10 shows Dov J. Berkowitz as the applicant for benefits, not Advanced Orthopedics PLLC, the Applicant in the case before me.
Applicant then called Kitty D’Alto as a witness. Ms. D’Alto has worked at Advanced Orthopedics, PLLC as a billing manager for seven or eight years. As part of her duties she is in charge of all billing for Applicant, including generating bills and ensuring they are submitted to the insurance companies.
Ms. D’Alto initially testified that the bill at issue in this case was mailed on 6/10/2015. She explained that the bill in evidence is dated 8/10/2015, as it was reprinted for the purpose of filing this arbitration and the amount at issue was changed in consideration for partial payments. She further testified other than the date on the bill, and the letter “F” after the patient’s account number, the bill submitted for arbitration is identical to the bill that was submitted to the insurance carrier for reimbursement. She specifically testified that box 33 on the original bill, indicating the billing provider info, indicated Advanced Orthopedics, PLLC on both the original bill and the copy before me. She stated that box 33 could not have had Dov J. Berkowitz listed as provider.
In rebuttal, Respondent showed the witness a copy of the bill which listed Dov J. Berkowitz as the provider in box 33. Ms. D’Alto then changed her testimony that this could be the bill submitted to Respondent. To make out a prima facie case, a claimant must present in its original papers the claim
form it submitted to the insurer. Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc.3d 996, 999, 838 N.Y.S.2d 861, 866 (Civ. Ct. Queens Co. 2007). Due to the inconsistencies in her testimony and in the evidence presented, I find that Applicant has failed to make out its prima facie.”