The Applicant commenced this No- Fault arbitration, seeking as compensation $912.00, which it billed for performing a lumbar spine MRI on July 16, 2008, on Assignor, a 42-year old male, who was injured in a motor vehicle accident on Feb. 3, 2008. Respondent Insurer denied payment, invoking the 30-day rule for providing written notice of claim.

"Respondent's timely issued denial set forth the following as the basis for denial of payment: 'The policy conditions were violated, as the claimant failed to submit written notice of claim within 30 days of the date of accident. This is a violation of regulation 68, and the company's rights have been prejudiced. All benefits for this claim are denied. As per Regulation 68, late notice may be excused upon the receipt of reasonable written justification of the failure to submit timely notice.'"

"The mandatory No-Fault endorsement to motor vehicle liability insurance policies provides that written notice of an accident shall be given 'as soon as reasonably practicable, but in no event more than 30 days after the date of the accident. . . .' 11 NYCRR 65-1.1(d)." "An insurer issuing a timely denial is within its rights to deny No-Fault benefits if the applicant does not comply with this time limitation for submitting notice of claim. See Matter of Medical Society v. Serio, 100 N.Y.2d 854, 768 N.Y.S.2d 423 (2003); New York Presbyterian Hospital v. Elrac, Inc., 8 A.D.3d 541, 779 N.Y.S.2d 524 (2d Dept. 2004); Bronx Expert Radiology, P.C. v. Motor Vehicle Accident Indemnification Corp., 23 Misc.3d 129(A), 885 N.Y.S.2d 710 (Table), 2009 N.Y. Slip Op. 50621(U), 2009 WL 962217 (App. Term 1st Dept. Apr. 9, 2009); Maximum Care Chiropractic Care, P.C. v. Granite State Ins. Co., 10 Misc.3d 144(A), 814 N.Y.S.2d 891 (Table), 2006 N.Y. Slip Op. 50116(U), 2006 WL 236986 (App. Term 1st Dept. Feb. 1, 2006); cf. St. Clare's Hospital v. Allcity Insurance Co., 201 A.D.2d 718, 608 N.Y.S.2d 325 (2d Dept. 1994); Bridges v. Allstate Insurance Co., N.Y.L.J., Oct. 31, 2002, p. 25, col. 2 (City Ct. New Rochelle, Preston Scher, J.)."

"However, to properly invoke this defense, the insurer's denial 'must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.' 11 NYCRR 65-3.3(e). If this advisory is not included in the denial form, the form is rendered invalid. See Delta Diagnostic Radiology, P.C. v. Interboro Ins. Co., 25 Misc.3d 134(A), 2009 N.Y. Slip Op. 52222(U), 2009 WL 3645647 (App. Term 2d, 11th & 13th Dists. Oct. 23, 2009); Radiology Today, P.C. v. Citiwide Auto Leasing, Inc., 15 Misc.3d 92, 838 N.Y.S.2d 336 (App. Term 2d & 11th Dists. Mar. 8, 2007); SZ Medical P.C. v. Country-Wide Insurance Co., 12 Misc.3d 52, 817 N.Y.S.2d 851 (App. Term 2d & 11th Dists. 2006)." "In the case at bar, Respondent included an advisory concerning excusal of the late provision of notice of claim but instead of using the words 'will be excused,' wrote 'may be excused.' The question becomes whether Respondent, by using 'may' instead of 'will,' complied with the mandate to include the advisory in its denial. In Hempstead Pain & Med Services, P.C. v. General Assur. Co., 13 Misc.3d 980, 821 N.Y.S.2d 841 (Dist. Ct. Suffolk Co. 2006), the court held that stating 'If there is any additional information you wish to submit, we may reconsider our position' sufficed to meet 11 NYCRR 65-3.3(e)'s requirement as to the advisory."

"The No-Fault Law is in derogation of the common law and so must be strictly construed. Presbyterian Hospital in the City of New York v. Atlanta Casualty Co., 210 A.D.2d 210, 211, 619 N.Y.S.2d 337, 338 (2d Dept. 1994). Bearing this in mind, I hold as a matter of law that the Respondent's advisory was in conflict with 11 NYCRR 65- 3.3(e), and that since the advisory was not properly stated in the denial, the 30-day rule was improperly invoked. I disagree with the decision in Hempstead Pain & Med Services, P.C., supra, but in any event, that court's reasoning was based in part on the fact that the applicant there did make an excuse submission; no such excuse submission was made to Respondent during claims processing, as per the record."

"A claimant who is told that late notice may be excused is less likely to even attempt to provide an excuse than if he is told that late notice will be excused. The word 'may' implies that even if a claimant can provide reasonable justification of the failure to give timely notice, it remains discretionary with the insurer as to whether the lateness will be excused." "This is contrary to the regulation which imposes a mandate upon the insurer to affirmatively accept reasonable justification of the failure to give timely notice. Inasmuch as the wording of the advisory used by Respondent did not convey the thrust of the regulation, I hold that it was not in compliance with it. The defense of late notice is rejected."

"A prima facie case of entitlement to No-Fault compensation is made out where the evidence proves that a clamant submitted proof of claim to an insurer and that the billed amount was not paid within 30 days. Sunshine Imaging Association/WNY MRI v. Government Employees Ins. Co., 66 A.D.3d 1419, 885 N.Y.S.2d 557 (4th Dept. 2009); Westchester Medical Center v. Lincoln General Ins. Co., 60 A.D.3d 1045, 877 N.Y.S.2d 340 (2d Dept. 2009); Westchester Medical Center v. Clarendon National Ins. Co., 57 A.D.3d 659, 868 N.Y.S.2d 759 (2d Dept. 2008); New York and Presbyterian Hosp. v. Allstate Ins. Co., 31 A.D.3d 512, 818 N.Y.S.2d 583 (2d Dept. 2006); Nyack Hospital v. Metropolitan Property Casualty Insurance Co., 16 A.D.3d 564, 791 N.Y.S.2d 658 (2d Dept. 2005); New York Hospital Medical Center of Queens v. Motor Vehicle Accident Indemnification Corp., 12 A.D.3d 429, 784 N.Y.S.2d 593 (2d Dept. 2004); Mary Immaculate Hospital v. Allstate Insurance Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 (2d Dept. 2004). 'The court may, in its discretion, rely on defendant's documentary submissions establishing defendant's receipt of plaintiff's claims.' Lenox Hill Radiology MIA, P.C. v. American Transit Ins. Co., 19 Misc.3d 358, 363, 851 N.Y.S.2d 861, 866 (Civ. Ct. New York Co. 2008)." "Applicant proved that it submitted proof of claim to Respondent, which did not pay the bill contained therein. The proof that Applicant mailed its proof of claim forms to Respondent is embodied in the latter's denial, which references receipt of the proof of claim. See Ultra Diagnostics Imaging v. Liberty Mutual Insurance Co., 9 Misc.3d 97, 804 N.Y.S.2d 532 (App. Term 9th & 10th Dists. 2005). The submission of an NF-10 denial of claim form does establish prima facie that the insurer received the claim referenced therein as having been submitted by the provider and that the insurer did not pay the claim. Lopes v. Liberty Mutual Ins. Co., 2009 N.Y. Slip Op. 51279(U), 2009 WL 1799812 (Table) (App. Term 2d, 11th & 13th Dists. Jan. 26, 2009)."

"In its Nov. 13, 2009 cover letter / memorandum of law, Respondent's counsel argued that Applicant was required to establish medical necessity and proximate causation as elements of its prima facie case. In support of this proposition, it cited an award of mine, Boro Medical Supply a/a/o JP v. Kemper Ins. Co., AAA Case No. 17-991-32295-2. However, this award was written by me on Sept. 30, 2002, prior to the extensive case law on the subject of prima facie entitlement to No-Fault benefits which was issued thereafter by the appellate courts in this state, and followed by the trial courts. As such, it is not in accord with the current status of the law, it certainly does not reflect the undersigned's opinion of the law on the prima facie case, and it should no longer be cited [bold face type by the Arbitrator]. The undersigned has written hundreds of awards since then, in which the prima facie case was analyzed as set forth above -- a claimant need merely prove that proof of claim was mailed to the insurer and that the amount billed was not paid within 30 days thereafter."

"To cite this old award of mine despite the hundreds of court decisions (perhaps thousands) and hundreds of my awards articulating a different standard borders on impropriety." [emphasis by editor]

"Additional evidence to establish medical necessity, beyond a complete proof of claim and the fact that benefits were overdue, is not an element of a prima facie case of entitlement to No-Fault benefits. Metropolitan Radiological Imaging, P.C. v. Country-Wide Insurance Co., 19 Misc.3d 130(A), 859 N.Y.S.2d 904 (Table), 2008 N.Y. Slip Op. 50539(U), 2008 WL 711878 (App. Term 2d & 11th Dists. Mar. 13, 2008). In fact, were an arbitrator to hold that medical necessity is a requisite element of a prima facie case, the arbitrator's award would be contrary to settled law and properly vacated. Preferred Medical Imaging, P.C. v. Countrywide Ins. Co., 2009 N.Y. Slip Op. 52577(U), 2009 WL 4894349 (App. Term 1st Dept. Dec. 18, 2009). Moreover, unlike negligence actions where plaintiffs must prove causation, claimants seeking to recover first party No-Fault payments bear no such initial burden, as causation is presumed. Kingsbrook Jewish Medical Center v. Allstate Insurance Co., 61 A.D.3d 13, 21, 871 N.Y.S.2d 680, 686 (2d Dept. 2009)."

"Applicant having established a prima facie case of entitlement to No-Fault benefits, and Respondent's sole defense to nonpayment -- untimely notice of claim -- having been rejected, the within arbitration claim is granted. Applicant is awarded the $912.00 billed."

Comment: I don't recall seeing any other insurer criticized by courts and arbitrators as often as this one for the manner in which it handles its claims. This insurer was, a short while back, held by the Supreme Court to be "atrocious, shocking and criminal", and by Arbitrators recently of taking "improper, adversarial" stances towards claimants, and submitting peer review reports of questionable authenticity. Of course, sometimes there is another side to a story, and I invite Global Liberty to submit to me any commentary it may have in this regard in its own defense.