This no-fault claim in the sum of $10,854.18 for the following medical services was allegedly necessitated by a motor vehicle accident that took place on 8/2/08: 8/8/08 to 9/8/09: Physical therapy $8,117.53; 2/3/09: EMG/NCV–Upper $1,296.08; EMG/NCV –Lower $1,083.12 1/20/09, 3.24/09, 5/19/09, 7/7/09, 9/8/09: Office follow up visits: $357.45.

“Based on my review of the documents set forth in the ECF as of the date hereof, I find that the provider made a prima facie case by submission of the following: an itemized invoice, an assignment of benefits form, verification of treatment forms and medical notes, narratives and study reports. In addition, at the time for the hearing the treating physician, Dr. Raj Tolat appeared and gave testimony on the part of the claimant.” “The basis of the respondent’s denials is a general benefits cut off as of 11/25/08. In the course of the hearing the claimant alleged that it had not received a copy of the global denial until at least 1/16/09. The respondent was not able to prove earlier service of the document on the claimant.” “Upon examination of documentation of these claims, totaling $4,446.10, I find that all such claims were properly presented but mishandled by the respondent, either by failing to issue a timely denial or failing to deliver an appropriate global denial subsequent to the IME.” “After the accident the EIP presented with cervical, thoracic and lumbar back pain, left shoulder pain and groin pain. MRI studies that followed indicated disc bulges at L3/4 and L5/S1 with thecal sac indentation, disc bulges at C3/4 and 5/5, a posterior central disc herniation at C5/6, supraspinatus tendinosis of the left shoulder and a small synovial effusion of the left knee. As a result of the initial clinical evaluations and MRI’s the EIP was put on a physical therapy program consisting of heat, cold, ultrasound massage and exercise.”

“In addition he was referred for an orthopedic consultation. On 11/5/08 a steroid injection was administered to his left shoulder to alleviate pain. His physical therapy and diagnostic treatment continued into 2009 at which time a series of 6 cervical and lumbar epidural injections for pain in those regions was administered by Dr. Brian S. Hoftel, a pain specialist.” “On November 6, 2008 the respondent’s specialists, a rehabilitation physician and acupuncturist examined the EIP. The acupuncturist reported neither deficit nor debility. The physician, Dr. Michael Russ, similarly reported no observed difficulties, full ranges of motion, absence of tenderness and that all difficulties had resolved. The respondent, based on the recommendation of these experts, then terminated benefits. In dispute is reimbursement of all the services set forth subsequent to the cut off.”

“At the time of the hearing the claimants presented a single witness, Dr. Raj Tolat. In his testimony he clarified both the course of the EIP’s treatment and addressed Dr. Russ’ IME examination.” “As to the IME report from Dr. Russ, Dr. Tolat pointed out that the report failed to account for any MRI report that showed various objective indicia of injury. In addition, he disputed the validity of Dr. Russ’ observations based on his own examination that was performed on November 18, 2008, approximately two weeks after the EIP presented to Dr. Russ.”

“At that time, Dr. Tolat credibly testified, the EIP complained of episodic neck pain radiating to left upper extremity with numbness and tingling as well as episodic low back pain, radiating to the left leg, also with numbness and tingling.” “He also observed limitations of ranges of motion of the cervical and lumbar spine with tenderness on palpation in each area, limited range of motion of the left shoulder and limitation of flexion of left knee due to pain.”

“Finally Dr. Tolat testified that based upon his observations over time he ordered EMG/NCV studies that showed a C/7 and L5 radiculopathy. As already set forth the EIP ultimately received a series of epidural injections in his spine to control pain. The entire progression of treatment and testing, according to Dr. Tolat, was necessitated by the automobile accident and was necessary to treat the EIP.” “The claimant having made a prima facie case, the burden shifted to the respondent to show the absence of necessity of the continued treatment. This may generally be done by the IME of an expert who establishes that further treatment is unwarranted based on a sufficient factual basis and medical rationale. However in this matter the provider’s witness pointed out that Dr. Russ’ evaluation failed to account for the various objective conditions indicated by the EIP’s MRI evaluations.” “In addition Dr. Tolat testified to the substantial variance between his own observations and those of Dr. Russ as well as indicated how the EMG/NCV evaluations indicated spinal radiculopathies.”

“Finally, he testified as to the fact that the EIP ultimately was treated with epidural injections to deal with high pain levels.” “Based on the totality of the circumstances and Dr. Tolat’s testimony, I find that the respondent’s IME reports did not reasonably provide a basis to terminate medical benefits and that the witness’ credible testimony indicated both the necessity and reasonableness of the post cut off treatments.”

“The claimant is therefore entitled to reimbursement for both the services provided before the cut off as well as those subsequent to it. As to the possibility that certain post cut off billings were not received by the respondent, once an insurer issues a general or global denial there is no further obligation to provide it with bills. (cf. State Farm v. Domotor, 266 A.D. 2d 219).” “The claimant is awarded $10,854.18.” Comment: Once again, Domotor raises its head like the monster in a 1950s Japanese horror movie, and knocks trains off their rails.

Until Domotor is slain, I advise no fault insurers to never issue a blanket denial. What they should do instead is... well I am available for consultation on what to do instead. Claims people always ask me, “Well, so what should we do after a negative IME?” I tell ‘em....

“Firefighter’s Rule” Bars Cop’s Recovery for Injuries Caused by Headquarters Security Barrier

In a case which could have, in my view, gone either way, the Court of Appeals has held that a police officer injured by the malfunction of an anti-terrorist security barricade at police headquarters may not recover for his injuries because, under the “firefighter’s rule,’ the injury was caused by a risk associated with his job as a cop. “We hold that the ‘firefighter rule,’ which bars common-law negligence recovery by firefighters and police officers for injuries that result from risks associated with their employment, requires dismissal of this case, in which a police officer was injured by the negligent operation of a security device.”

“The parking lot of the New York City Police Headquarters in Manhattan is protected by an unusual kind of gate, apparently designed to thwart car bombs and similar forms of terrorism. The gate is a concrete barrier that can be retracted into the ground to allow entry to the lot. If it is necessary to stop an entering vehicle, the gate can be raised, automatically and quickly, with enough force to lift a car off the ground.”

“In this case, the gate apparently worked as it was designed to do. The driver of the car in question, however, was not a terrorist, but plaintiff, the commanding officer of the Police Commissioner’s liaison unit, who was arriving at his place of work. Plaintiff showed his credentials to one of the police officers guarding the lot. The barrier was lowered but then, accidentally, raised again while plaintiff was driving over it. The front of the car was lifted some four feet into the air, and plaintiff was injured.”

“Plaintiff sued the City and the Police Department for negligence. Supreme Court granted summary judgment to defendants, relying on the firefighter rule, and the Appellate Division affirmed. We granted leave to appeal, and now affirm.” “In Zanghi v Niagara Frontier Transp. Commn. (85 NY2d 423, 436 [1995]) we stated the firefighter rule: ‘Police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment.’ Since 1996, the rule has been applicable only in actions against a ‘police officer’s or firefighter’s employer or co-employee’ (General Obligations Law § 11-106[1]).”

“We decided in Zanghi that the rule bars an officer’s or firefighter’s recovery when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury. We explained:

Where some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence. By contrast, a common-law negligence claim may proceed where an officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving that injury. For example, if a police officer who is simply walking on foot patrol is injured by a flower pot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the acts undertaken in the performance of police duties placed him or her at increased risk for that accident to happen. On the other hand, if an officer is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery in tort because the officer is specially trained and compensated to confront such dangers.

“Zanghi’s distinction between cases in which the plaintiff’s duties ‘increased the risk’ and those in which they ‘furnished the occasion for’ the injury has not proved easy to apply. Appellate Division and trial court cases on whether injuries resulted from risks ‘associated with the particular dangers inherent’ in police work or fire-fighting are many, and hard to reconcile (see e.g. Tighe v City of Yonkers, 284 AD2d 325 [2d Dept 2001] [officer tripped over plate in street while walking to patrol car; firefighter rule not applied]; Carter v City of New York, 272 AD2d 498 [2d Dept 2000][officer fell because of sidewalk defect while issuing summons; rule applied]; Simons v City of New York, 252 AD2d 451 [1st Dept 1998] [officer escorting complainant tripped over depression in roadbed; rule applied]; Poveromo v Avis Rent-A-Car Sys., 242 AD2d 467 [1st Dept 1997] [officer injured in police car that went over a metal bumper; rule applied]; Olson v City of New York, 233 AD2d 488 [2d Dept 1996] [firefighter fell in pothole while dismounting from fire truck; rule not applied]; Siciliano v City of New York, 16 Misc 3d 1129[A] [Sup Ct, Richmond County 2007] [officer fell in pothole while walking to vehicle; rule not applied]). But however difficult other cases may be, the application of the rule to this case seems straightforward.”

“The cause of the injury to plaintiff here - a high-security device protecting the police headquarters parking lot - was plainly a risk ‘associated with the particular dangers inherent’ in police work. Ordinary civilians may encounter such devices, but police officers, whose duties may include working in secure areas that are at risk of a terrorist attack, are far more likely to do so. An act taken in furtherance of a specific police function - entry into a protected parking lot, which only plaintiff ’s police credentials allowed him to enter - exposed plaintiff to the risk of this injury.”

“Plaintiff emphasizes that at the time of his injury he was not ‘on duty’; his tour of duty was not to begin for another ten minutes (though this did not prevent him from applying for benefits for a ‘line of duty’ injury). Whether he was on duty or not is not dispositive; police officers often, by the nature of their jobs, face significant risks even when they are not technically at work (see Levine v Chemical Bank, 221 AD2d 175 [1st Dept 1995]; Campbell v Lorenzo’s Pizza Parlor, Inc., 172 AD2d 478 [2d Dept 1991]). What is dispositive is the nature of the risk. Plaintiff ’s claim is barred by the firefighter rule.” “Accordingly, the order of the Appellate Division should be affirmed, with costs.” Comment: There was a well-reasoned dissent, and I have to say that the application of the rule here was something close to arbitrary. There is just a thin thread that makes this decision facially valid: the fact that the security device protected an area in which only police officers may enter. But does that make the risk one that is peculiar to the job of being a cop? If so, then wouldn’t any accident which occurs in an area restricted to police officers, such as the locker room where they change clothes, be subject to the same preclusion? If a cop slips and falls on spilled coffee in the area behind the front desk at a precinct house — an area where only cops are allowed — would that suit be banned by the firefighter’s rule?

The trouble with fuzzy rules like this one is that their application is unpredictable. There is no better proof of this than the fact that a judge of the Court of Appeals dissented. Why can’t our lawmakers and courts come up with ‘bright line’ rules which, even if that bright line is somewhat arbitrary, at least has the benefit of predictability? Why should teams of lawyers need to bring a case all the up to the Court of Appeals to get a final ruling on how a law should be applied?

The “firefighter rule” should be revised, one way or the other, to provide clarity. Either ban all personal injury suits for line-of-duty injuries, or allow them all. Or come up with a rule that anyone can understand. Even a “serious injury” threshold, like in auto accidents, would be better than the current firefighter’s rule. Worst of all, this decision provides little, if any, guidance in future cases. Any fact pattern which deviates in any detail from this one could be distinguished and therefore, require a similar amount of litigation.

David Wadler v City of New York 2010 NY Slip Op 01373 Decided on February 18, 2010 Court of Appeals Smith, J.