Appeals


Citing Surveillance Videos and Other Evidence, Circuit Court Upholds Plan Administrator’s Decision to End Employee’s Long Term Disability Benefits
July 31, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case was employed by BDP International as an air import coordinator. Her full time sedentary job required her to sit for most of an eight hour day and, occasionally, to lift or carry a small amount of weight. After she was diagnosed with relapsing-remitting multiple sclerosis (“MS”) in the late 1990s, …
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Arbitration or Litigation of No-Fault Insurance Disputes: The Second Circuit Speaks
July 7, 2014 | Appeals | Insurance Coverage
Insurance companies in New York continue to expend considerable time and effort to fight no-fault automobile insurance fraud. Toward that end, one of the most effective tools is the filing of lawsuits in federal court against health care providers who have received payment for services they contend they have provided to injured policyholders. As has …
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ADA Accommodation Claim by Janitor Who Alleged She Had a Sensitivity to Cleaning Products Is Rejected
June 30, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked for Knight Facilities Management-GM, Inc., as a janitor for several years, during which time she alleged that she developed a sensitivity to cleaning products. After she went to her family physician with symptoms, the doctor recommended that the plaintiff miss work for a week and wear a mask when …
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Severance Payments Made to Terminated Employees Are Taxable Wages, Supreme Court Rules
May 31, 2014 | Appeals | Employment & Labor | Insurance Coverage
Before and after voluntarily entering bankruptcy, Quality Stores, Inc., an agricultural-specialty retailer, terminated thousands of employees. The employees received severance payments that were the result of a reduction in work force or a discontinuance of a plant or operation pursuant to two different termination plans. Under the first plan, terminated employees received severance pay based …
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Grand Jury Recommends Four Steps to Cut Workers’ Comp Fraud
May 2, 2014 | Appeals | Insurance Coverage
Employers, employees, taxpayers, and insurance carriers all are heavily burdened by the costs of Worker’s Compensation insurance fraud in New York and in the rest of the tri-state area. As just one example, consider what Charles Kelcy Pegler Sr. admitted to in a guilty plea entered just days ago in a New Jersey state court. …
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Deducting Balances Due on Company-Guaranteed Credit Cards from Employees’ Final Paychecks Did Not Violate FLSA, Circuit Court Rules
April 30, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiffs in this case sued their former employer, Costco Wholesale Corporation, under the federal Fair Labor Standards Act (FLSA) and the California Labor Code, alleging that Costco improperly had withheld wages from their final paychecks to repay the undisputed outstanding balances due on their company-guaranteed credit cards. After a bench trial in which the …
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Anatomy of a Late Claim
March 31, 2014 | Appeals | Insurance Coverage
A recent decision by the U.S. Court of Appeals for the Sixth Circuit, affirming a federal district court ruling, highlights the importance for both employers and employees of the language in a health care plan and summary plan description (SPD), including the limitations periods for commencing litigation. The case involved the health care plan for …
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Restitution to Insurance Carriers: The New York Rule
March 7, 2014 | Appeals | Insurance Coverage
Several years ago, police investigators in California found a number of stolen vehicles, including some that were being dismantled, on Julio Valdes’ property.  He later pled no contest to owning and operating a chop shop and was sentenced to two years and four months in prison. The trial court then set a victim restitution hearing. …
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Director of Insurer’s Retirement Plans Business Unit Found Exempt from FLSA Overtime Rules
February 28, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case was hired by Standard Insurance as Director of Institutional Sales and Product Manager for The Standard’s 403(b) and 457 retirement products shortly after the company introduced a new product into those markets. The plaintiff’s responsibilities included training staff about 403(b) plans, explaining their differences from 401(k) plans, doing what was …
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Claim for Disability Benefits Filed 9 1/2 Years After Payments Had Ceased Is Dismissed on Statute of Limitations Grounds
January 31, 2014 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case sued Raytheon Company on June 13, 2013 for breach of contract because it had discontinued paying long term disability benefits to him in November 2000. The plaintiff, who had been terminated by Raytheon in July 2002, sought $3.8 million in damages. Raytheon moved to dismiss, arguing that the plaintiff’s action …
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NY High Court Rejects Cause of Action for Medical Monitoring
January 14, 2014 | Appeals | Complex Torts & Product Liability
AMERICAN BAR ASSOCIATION – MASS TORTS & DEVELOPMENTS In a December 17, 2013, decision, the New York Court of Appeals refused to adopt an independent equitable cause of action for medical monitoring by a four-to-two vote in Caronia v. Philip Morris USA, Inc., No. 227 (N.Y. Dec. 17, 2013). The decision resolved a split among …
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Cases Across the Country: Small, Big, and In Between
January 3, 2014 | Appeals | Insurance Coverage
The legal issues governing insurance fraud that are discussed in this column typically focus on New York law or on federal law and its application to New York cases. The world of insurance fraud is quite extensive, however, as illustrated by recent insurance frauds alleged or uncovered from across the country – including some unusual, …
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From the Courts
January 1, 2014 | Appeals | Insurance Coverage
“Equitable Lien by Agreement” Permits ERISA Plan to Recover Third Party’s Payment to Plan Participant After a participant in the National Elevator Industry Health Benefit Plan, a self-funded, multi-employer employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 (ERISA), was injured in an all-terrain vehicle accident, the plan paid approximately …
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CVS Pharmacist Found Exempt from FLSA’s Overtime Rules
December 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case was employed as a pharmacist by CVS RX Services, Inc. His base weekly salary, which was calculated on a 44 hour work week, exceeded $1,250. CVS guaranteed his base salary and classified him as a salaried employee exempt from the time-and-a-half overtime requirements of the federal Fair Labor Standards Act …
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Circuit Court Rejects FMLA Interference Claim Against Secondary Employer
November 30, 2013 | Appeals | Insurance Coverage
Keppel Amfels L.L.C., which builds and repairs offshore drilling platforms and marine vessels at the Port of Brownsville, Texas, relies on lease-labor and temporary staffing agencies, including Perma-Temp Personnel Services, Inc., to staff about half of its local work assignments. Although these agencies fill “temporary” positions, some placements last for several years. Keppel Amfels and …
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The Case for Allowing Insurers to Recover Attorneys’ Fees in Fraud Suits
November 1, 2013 | Appeals | Insurance Coverage
AMERICAN BAR ASSOCIATION – MASS TORTS & DEVELOPMENTS After an employee of Glasbern Inc. was injured, the company’s Workers’ Compensation insurer, Zenith Insurance Company, began paying Workers’ Compensation benefits to him. Thereafter, Zenith sued Glasbern, Glasbern’s owner, Albert Granger, and its insurance broker, alleging that it only had issued and renewed the policy as a …
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Employment Agreement’s Requirement that Employee Bring Legal Actions Within Six Months Is Ruled Invalid with Respect to FLSA and Equal Pay Act Claims
October 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked for FedEx Customer Information Services, Inc., under an employment agreement that provided, in part, that “[t]o the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date …
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Court Rules Same-Sex Spouse Entitled to Survivor Annuity under ERISA Profit Sharing Plan
September 30, 2013 | Appeals | Employment & Labor | Insurance Coverage
After Sarah Ellyn Farley began working at a law firm in 2004, she became a participant in the firm’s profit sharing plan.  In 2006, Farley married Jean Tobits in Toronto, Canada, as authorized under Canadian law. Shortly after her wedding, however, Farley was diagnosed with cancer and died in 2010. The profit sharing plan required that, …
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Growing Role of Discovery in Providers’ Cases Seeking No-Fault Benefits
September 6, 2013 | Appeals | Insurance Coverage
In recent years, more and more no-fault[1] insurance carriers and health care providers have become parties to an escalating battle over providers’ requests to obtain payment from no-fault insurers for care the providers allegedly provided to injured people (so-called “assigned first-party no-fault benefits”). At the heart of the dispute is State Farm Mutual Automobile Ins. …
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Court Dismisses Breach of Fiduciary Duty Claim against Disability Plan Administrator for Failing to Provide Plan Summary
August 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
After her claim for benefits was denied, the plaintiff in this case, a former employee of Corning Incorporated and a participant in the Corning Incorporated Long Term Disability Plan, sued the plan administrator – the Corning Benefits Committee – for breach of fiduciary duty by virtue of its alleged failure to furnish her with a …
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Breach of Duty to Defend Stands Out Among Noteworthy Issues
August 26, 2013 | Appeals | Insurance Coverage
The past term’s significant insurance law decisions by the New York Court of Appeals resolved a variety of issues that will alter the practice of insurance law in important ways. Among the most notable of these decisions was K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co.,[1] where the court evaluated the consequences to …
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Circuit Upholds Sanctions against Plaintiff’s Attorney in Case Involving Alleged Breach of Disability Insurance Policy
July 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case sued Paul Revere Life Insurance Co., alleging that Paul Revere had engaged in bad faith and that Paul Revere had breached his disability insurance policy by terminating his disability benefits. The district court dismissed the plaintiff’s bad faith claim, and denied the plaintiff’s two motions for reconsideration. Shortly before trial …
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Statute and Common Law Provide Immunity for Insurers Reporting Fraud
July 5, 2013 | Appeals | Insurance Coverage
After a fire damaged a house in Wilson, North Carolina, that was owned by Cully’s Motorcross Park, Inc., its president and sole stockholder, Laurie Volpe, submitted a claim to North Carolina Farm Bureau Mutual Insurance Company, the insurer for Cully’s. Farm Bureau began an investigation and ultimately denied the claim, citing its suspicion that the …
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Court Dismisses Complaint Seeking Payment for MUA Procedures
June 30, 2013 | Appeals | Insurance Coverage
Montvale Surgical Center, LLC, an outpatient ambulatory surgery center, performed three “medically necessary” spinal manipulation under anesthesia (MUA) procedures on New Jersey resident Gerald Tyska at its facility. Tyska subscribed to a fully-funded group health insurance plan maintained by Coventry Health Care, Inc., and assigned his rights under the plan to Montvale. Montvale submitted requests …
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U.S. Supreme Court Rules that Offer of Judgment that Mooted Plaintiff’s FLSA Case Required that It Be Dismissed
May 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
In 2009, Laura Symczyk, who had been employed by Genesis Healthcare Corporation as a registered nurse at its Pennypack Center in Philadelphia, Pennsylvania, filed a complaint on behalf of herself and “all other persons similarly situated” – known as a “collective action” – that alleged that Genesis had violated the federal Fair Labor Standards Act …
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Court Validates Another Tool for Insurers in Fight against No-Fault Fraud
May 3, 2013 | Appeals | Insurance Coverage
Over a decade ago, in an effort to reduce no-fault insurance fraud involving the improper ownership or licensing of medical providers, the New York State Insurance Department (the precursor to the New York State Department of Financial Services (“DFS”)), adopted a regulation that declared that a health care services provider was eligible for reimbursement from …
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Circuit Upholds Decision Denying Disability Benefits for Employee Who Claimed She Had Fibromyalgia
April 30, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked for American International Group (AIG) and participated in its group long term disability benefit plan, which was governed by the provisions of the Employee Retirement Income Security Act (ERISA) and administered by Hartford Life and Accident Insurance Company. After several hospitalizations, the plaintiff filed a claim for long term …
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New Standards for Medical Monitoring and Fear of Cancer Claims
April 1, 2013 | Appeals | Complex Torts & Product Liability
AMERICAN BAR ASSOCIATION – MASS TORTS & DEVELOPMENTS Exxon Mobil Corp. v. Ford No. 16, Sept. Term 2012 (Md. Feb. 26, 2013) The Court of Appeals of Maryland has adopted standards for medical monitoring and fear-of-cancer claims in a pair of companion decisions regarding alleged exposure to methyl tertiary-butyl ether (MTBE) and benzene arising out …
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Handbook’s Disclaimer Insufficient to Bar State Wage Claim
March 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiffs in this case brought a class action in federal court against Comcast Corporation and Comcast Cable Communications Management, LLC, alleging among other things that the defendants had violated the Illinois Wage Payment and Collection Act (IWPCA) which requires every employer “at least semi-monthly, to pay every employee all wages earned during the semi-monthly pay …
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Proposed Legislation Would Help Fight No-Fault Insurance Fraud
March 1, 2013 | Appeals | Insurance Coverage
No-fault insurance fraud continues to plague New York, with estimates of its cost to consumers and insurance carriers reaching hundreds of millions of dollars.[1] The growing wave of fraud persists notwithstanding efforts by federal and state prosecutors to bring criminal actions seeking to punish alleged fraud[2] – and despite guilty pleas in some of these actions.[3]  …
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Second Circuit Severely Limits ADA Claims Against Government Employers
February 28, 2013 | Appeals | Employment & Labor
The U.S. Court of Appeals for the Second Circuit has ruled that a former employee of the Central Islip Public Library may not bring an employment discrimination claim against the library under Title II of the Americans with Disabilities Act (“ADA”). The circuit court’s decision, in which Rivkin Radler LLP represented the library, resolves an …
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Facebook Photos Doom Employee’s FMLA Retaliation Claim
| Appeals | Employment & Labor | Insurance Coverage
After working for Advantage Health Physician Network for about 18 months, the plaintiff in this case began taking intermittent leave under the Family and Medical Leave Act, claiming that she was incapacitated from pain from a back injury she had sustained years earlier. About five weeks into her leave, several of her coworkers saw pictures …
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LTD Plan Administrator Need Not Consider Social Security Administration Decided After Its Final Decision
January 31, 2013 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case, who worked for GKN North America Services until January 2009 when she stopped due to persistent pain from various medical conditions, filed a claim for disability benefits under an insurance policy issued by Hartford Life and Accident Insurance Company. The plaintiff received short term disability benefits through July 21, 2009, …
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“New York State Wage Theft Prevention Act Notice Requirements”
December 31, 2012 | Appeals | Employment & Labor
The New York State Wage Theft Prevention Act (“WTPA”) remains in effect, which means that employers have until February 1, 2013 to provide the required written notice to employees.  Pursuant to the WTPA, New York employers must provide New York employees with a written notice and acknowledgment of pay rate and payday on an annual …
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Employer Does Not Violate FLSA by Changing Workweek So Employees Earn Fewer Hours of Overtime
| Appeals | Employment & Labor | Insurance Coverage
Five current and former employees of Redland Energy Services, LLC, who worked as operators of Redland’s two drilling rigs, sued Redland, alleging that it had violated an overtime provision of the federal Fair Labor Standards Act (FLSA) by changing the designation of their workweek, but not their work schedule, so that fewer hours qualified as …
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Employee Wellness Program Did Not Violate ADA, Circuit Court Decides
November 30, 2012 | Appeals | Employment & Labor | Insurance Coverage
Several years ago, employees of Broward County, Florida, who enrolled in the county’s group health plan became eligible to participate in a new employee wellness program sponsored by Broward’s group health insurer, Coventry Healthcare. The employee wellness program consisted of two components: a biometric screening, which entailed a finger stick for glucose and cholesterol, and …
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Regulation Barring Health Care Providers From No-Fault Program
November 2, 2012 | Appeals | Insurance Coverage
The Superintendent of the New York Department of Financial Services, Benjamin Lawsky, has issued an emergency regulation that may make it easier to bar health care providers ? temporarily and permanently ? who are suspected of engaging in no-fault insurance fraud from demanding payments from insurance carriers for services they claim to have provided. If …
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Circuit Court Rejects Claim for Lifetime Health Care Benefits
October 31, 2012 | Appeals | Employment & Labor | Insurance Coverage
Former employees of Xerox Corporation who participated in the Xerox Retiree Flex Health Care Plan alleged in a lawsuit they filed that they repeatedly had been promised lifetime benefits under a health care plan called the Flex Plan but that the defendants had reneged on that promise. The district court dismissed the claims and the …
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Recent Developments In Business Litigation
| Real Estate, Zoning & Land Use | Appeals
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Modern Families Complicate Rent Regulation Succession Decisions
October 22, 2012 | Appeals
Almost 25 years ago, the New York Court of Appeals issued a landmark decision under New York City’s rent-control regulations in a case involving the occupancy rights to a rent-controlled apartment upon the named tenant’s death. The court held that the term “family” should not be rigidly restricted to those people who have formalized their …
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Court Refuses to Conditionally Certify FLSA Action as a Collective Action
September 30, 2012 | Appeals | Employment & Labor | Insurance Coverage
The plaintiffs, former customer service representatives (CSRs) who staffed telephone lines at an Appletree Answering Service call center in St. Louis, Missouri, sued Appletree for allegedly violating the Fair Labor Standards Act (FLSA) by failing to pay them for actual hours worked and corresponding overtime. The plaintiffs alleged that Appletree had a nationwide policy of …
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From Common to Convoluted, Cases Demonstrate Range of Fraud
September 6, 2012 | Appeals | Insurance Coverage
This column typically focuses on insurance fraud trends, developments, and cases from New York.  Insurance fraud, however, goes well beyond this geographical area, and sometimes involves unusual, even bizarre, facts.  Locally, Nassau County District Attorney Kathleen Rice recently brought charges against Raymond Rother for allegedly conspiring with his son to fake his own drowning death …
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What Employers Need To Know About Obligations To Military Personnel
August 31, 2012 | Appeals | Employment & Labor
Several thousand U.S. military personnel have recently returned or will soon return from tours of duty.  Employers have obligations to military personnel and their families under both state and federal laws.   The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of service members who are voluntarily or involuntarily absent from their …
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Court Enforces Long Term Disability Policy’s Three Year Statute of Limitations
| Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case held a research position at Cornell University’s Weill Medical College (WMC) since at least 1997. On September 26, 2001, the plaintiff received a termination letter, effective as of September 28, 2001. On March 26, 2002, the plaintiff submitted a claim for disability benefits under WMC’s group long term disability insurance …
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Unanimity, for the Most Part, In Broad Variety of Insurance Rulings
August 27, 2012 | Appeals | Insurance Coverage
The past term’s insurance law decisions by the Court of Appeals generally did not involve the rather traditional slew of insurance coverage, insurance bad faith, and insurance fraud rulings that usually comprise the Court’s insurance law docket. The opinions, however, are by no means any less significant, or less interesting. Mostly rendered by a unanimous …
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Denial of Employee’s Post-Bankruptcy Disability Claim Bars Recoupment of Pre-Bankruptcy Overpayment of Disability Benefits
July 31, 2012 | Appeals | Employment & Labor | Insurance Coverage
The plaintiff in this case worked as an engineer for the Boeing Company. Under Boeing’s long term disability plan, employees who were totally disabled as a result of accidental injury or illness were eligible for long term disability benefits. During the first 24 months of disability, the plan’s “own occupation” definition of disability applied, under …
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Foreign Parallel Proceedings from the United States Perspective: Do the Courts Need a Crystal Ball?
| Appeals | Complex Torts & Product Liability
Please click the link below to view Foreign Parallel Proceedings From the United States Perspective: Do the Courts Need A Crystal Ball? Adobe Reader is required to view the bulletin. If Adobe Reader is not installed on your PC, click here to download and install. Foreign Parallel Proceedings From the United States Perspective: Do the …
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ERISA Preemption Rejected in Insurers’ Claims against Health Care Providers
July 6, 2012 | Appeals | Insurance Coverage
Insurance carriers that provide health care coverage in New York (and in other states) typically have developed comprehensive anti-fraud plans that help them identify and investigate insurance fraud. An important tool in these anti-fraud plans is post-payment reviews of claims submitted by health care providers. When insurance carriers detect fraud, and when they are unable …
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Appellate Term Establishes New Burden of Proof in Body Shop Litigation
June 30, 2012 | Appeals | Insurance Coverage
In recent years, there has been uncertainty as to the standards to be applied when automobile repair shops challenge the conduct of automobile insurers in regard to the negotiation and payment of collision repair costs.  In Nadel v. Allstate Insurance Company, 2012 N.Y. Misc. LEXIS 1527 (N.Y. App. Term 2d Dep’t 2012), the Appellate Term, …
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Employee’s Total Weekly Workers’ Compensation Payment May Not Exceed Statutory Cap, Court Rules
| Appeals | Employment & Labor | Insurance Coverage
The worker’s compensation claimant in this case worked as a collision shop technician in New York, repairing automobiles. In 2005, he suffered three injuries on the job. On February 21, he slipped on ice, injuring his hip and back. On March 18, he suffered a lower back sprain. He left his job on June 27 …
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