On de novo Appeal, Insurer Loses on Medical Necessity but Wins on Fee Schedule Issue: Allstate Insurance Company v Buffalo Neurosurgery Group.

• Author: Rogak, Lawrence N.
• Position: [COURTSIDE]

This action pursuant to Insurance Law [section] 5106(c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group. The defendant, as assignee of Krull, submitted a claim to the plaintiff insurer for no-fault insurance benefits for the surgery and related care. The plaintiff denied the claim. The defendant submitted the matter to arbitration. The arbitrator determined that the defendant was entitled to no-fault compensation in the principal sum of $11,352.46, plus interest and attorney's fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

On August 19, 2015, the plaintiff commenced this action pursuant to Insurance Law [section] 5106(c) for a de novo determination of the defendant's claims for no-fault insurance benefits. The plaintiff then moved for summary judgment on the complaint. In an order dated December 9, 2016, the Supreme Court denied the motion and, upon searching the record, awarded summary judgment to the defendant, concluding that the master arbitrator had properly affirmed the award of benefits to the defendant in the principal sum of $11,352.46, plus interest and attorney's fees. The plaintiff appeals.

Insurance Law [section] 5106(c) permits a de novo adjudication of a no-fault insurance claim where the master arbitrator's award is $5,000 or greater, exclusive of interest and attorney's fees. Here, we agree with the Supreme Court's denial of that branch of the plaintiff's motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull's surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary. In light of the plaintiff's failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue.

We agree with the Supreme Court's determination that the plaintiff established its prima facie entitlement to...