[*1]

Willets Point Chiropractic P.C. v Allstate Ins.

2012 NY Slip Op 51614(U)

Decided on August 16, 2012

Civil Court Of The City Of New York, Richmond County

Straniere, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2012 Civil Court of the City of New York, Richmond County

Willets Point Chiropractic P.C. As Assignee of Marina

Flores, Petitioner,

against

Allstate Insurance, Respondent.

Richard Grosso, D.C. PC. As Assignee of Marina Flores Petitioner,

against

allstate Insurance, Respondent.

017113/11

Philip S. Straniere, J.

Your toe bone connected to your foot bone,

Your foot bone connected to your ankle bone,

Your ankle bone connected to your leg bone,

Your leg bone connected to your knee bone,

Your knee bone connected to your thigh bone,

Your thigh bone connected to your hip bone,

Your hip bone connected to your back bone,

Your back bone connected to your shoulder bone,

Your shoulder bone connected to your neck bone,

Your neck bone connected to your head bone,

I hear the word of the Lord![FN1] [*2]

Plaintiff, Willets Point Chiropractic, PC (Willets)assignee of Mirna Flores (Index

No. 17113/11) and plaintiff, Richard Grosso, DC, PC (Grosso) assignee of Mirna Flores

(Index # 17119/11) each commenced an action against Allstate Insurance Company

seeking to be compensated for professional chiropractic services rendered to Mirna

Flores in the form of "manipulation under anesthesia" (MUA) which was denied by

defendant Allstate as neither medically nor chiropractically necessary.

It is stipulated that the plaintiffs timely and in proper form submitted their respective

bills for service and that the defendant timely and in proper form denied their respective

applications. Defendant's denial was based on an independent chiropractic examination

(ICE) report of Chester Bogdan DC (Bogdan), dated August 5, 2010, in which he

concluded that no further chiropractic treatment was chiropractically necessary. The

MUA services rendered herein were performed almost one year later, in July 2011.

A trial was commenced on June 13, 2012 and concluded on June 26, 2012. Both

sides were represented by counsel. The parties had stipulated that both actions for

chiropractic services rendered during the MUA could be joined together for trial as they

involved common issues of law and fact. It was also conceded that neither side had

information as to whether payment to the pre-screening physician, the anesthesiologist

and facility involved in the MUA had been either made or denied by Allstate. Nor was

there any evidence presented as to whether the plaintiffs commenced actions seeking

payment for regular chiropractic services rendered to Flores after the August 2010

Bogdan report.

TREATMENT HISTORY:

The patient, Mirna Lopez-Flores was injured in an automobile accident on May 9,

2010. She did not go immediately to the hospital, but later that same day went to the

emergency room at Winthrop Hospital where she was examined, X-rayed, had a CT scan

and was released. She came under the care of Richard Grosso, DC, chiropractor, an

orthopedist, Dov Berkowitz, MD and Eric Jacobson, MD, a specialist in Physical

Medicine and Rehabilitation. She was initially receiving chiropractic treatment five times

a week, which apparently was commenced on or about May 19, 2010 and which was later

reduced to three times a week. In addition Flores was going to physical therapy three

times a week.

At the time of the peer review on August 5, 2010, Flores was still receiving chiropractic

treatment and physical therapy three times a week. Dr. Berkowitz had recommended her

for three MRI exams.

On June 19, 2010, she underwent MRI's of both her cervical and lumbar spine. The

radiologist rendered an impression of "posterior disc herniations at L4-5 and at L5-S1

impinging on the anterior aspect of the spinal canal and abutting the nerve roots

bilaterally." The cervical MRI came back negative.

On June 22, 2010, Flores had an MRI of her right shoulder. The radiologist's

impression was "findings consistent with an intrasubstance tear of the subscapularis

muscle. Subacromial-[*3]subdeltoid bursitis."

On August 5, 2010, Bogdan, DC conducted an ICE of Flores and concluded that no

further chiropractic treatment was required. In spite of the denial, Flores continued to

receive chiropractic treatment. It is unclear whether these treatments were performed by

plaintiff Grosso or by plaintiff Willets where Grosso is the chief executive officer

according to the Department of State, Division of Corporations records, as the progress

notes and "SOAP" notes don't have any letterhead or its equivalent but appear to be

signed or initialed by Grosso.

On July 16, July 23, and July 30, 2011 plaintiffs performed MUA's on Flores at a

facility at the New Horizon Surgical Center in Paterson, New Jersey. Each plaintiff billed

defendant $1,641.92 for each of the three treatments and each seeks to be compensated in

the sum of $4,925.76 for their services. It should be noted this does not include a fee from

the facility, the pre-screening physician or the anesthesiologist.

Bogdan rendered his opinion after conducting his chiropractic examination but did

so without being provided with any records from the treating chiropractor by the

defendant. Bogdan indicated that he did not need the treating chiropractor's notes in order

to render his own opinion based on a chiropractic exam [FN2].

There was another issue raised in regard to Bogdan. He admittedly is not certified to

perform MUA and therefore cannot give an opinion as to the necessity of that particular

procedure. However, Allstate's and Bogdan's position is that he was opining only as to

the need for further chiropractic service after August 2010 and did not have to deal with

the issue of MUA because there was no need for any additional chiropractic services as

Flores' conditions had resolved and she had reached maximum benefit from her

treatments, let alone her requiring the MUA performed almost one year later in July

2011. The court agrees that the threshold issue was extension of chiropractic treatment

after the ICE date and that the MUA is being viewed as part of the overall chiropractic

treatment Flores received. [*4]

Plaintiffs have several burdens in these cases. First, establishing that additional

chiropractic services were needed after the date of Bogdan's ICE. Second, that the

injuries that necessitated the MUA were causally related to the automobile accident of

May 2010. Third, that MUA is a recognized treatment for Flores' injuries. The credible

evidence is that the plaintiffs have not met their burden in those regards and have not

successfully rebutted defendant's decision to terminate treatment.

Issues Presented:

A. Are Chiropractors Permitted to Perform MUA?

Before addressing the above issues particular to these claims, it is necessary to

determine if chiropractors may perform MUA. This court is concerned by the growing

number of no-fault claims for MUA which seem to be proliferating over the last year or

so in the court system. Several carriers refuse to recognize MUA as a compensable

treatment option under no-fault or other health related insurance policies. In fact there is

debate in the medical and chiropractic communities as to the effectiveness of MUA as a

treatment.

In this vein, it should be noted that in all of the MUA trials presided over by this

judge, no litigant has ever presented any independent study supporting the effectiveness

or need for this treatment or establishing that the patient who received MUA had a

condition which was made appreciably better after the MUA rather than if only

conservative chiropractic treatment had been continued or some other modality

employed.

Are there any studies showing what is the status of the patient six months or a year

after MUA? None has been presented to this court. No one has answered the question

whether the reason patients are not seen again by chiropractors after undergoing MUA is

that insurance coverage has run out rather than they are better and no longer need

treatment. And because the patients for whom MUA is recommended by definition do not

tolerate "pain" well, is there any study examining whether they "feel" better and have

"greater" range of motion because they think the procedure works rather than it actually

did anything physically to them to ease their pain and increase mobility? It would seem

that because pain is subjective and these patients are by definition not tolerant of pain,

this would be something an independent academic or health care professional institution

would have studied. But as noted above, no such independent studies have been

presented to this court.

A quick on-line search disclosed that most of the "success" reports are self-serving

statements from the persons who practice MUA and who recommend the treatment and

not by unaffiliated peer review process. Is MUA an accepted medical/chiropractic

procedure or is it "junk" medicine/chiropractic? This court is not convinced that this issue

has been resolved so as to warrant the seemingly sky-rocketing use of this procedure in

no-fault insurance situations.

Finally, MUA appears to be a procedure whereby a chiropractor who has been

unsuccessful treating the patient with conservative treatment recommends that the patient

[*5]undergo MUA to be performed by the same chiropractor. Rarely, if ever, is a second

opinion obtained before this "surgical" procedure is undertaken.

There have been several published decisions in regard to MUA and an apparent

acceptance that MUA is a recognized treatment option for chiropractic patients and

subject to being compensated for under a no-fault insurance policy [Flatbush

Chiropractic PC v Metlife Auto & Home, 35 Misc 3d 1023(A), (2012); Kraft v State

Farm Mutual, 34 Misc 3d 376 (2011); Giugliano v Merchants Mutual, 29 Misc 3d 367

(2010)].

The common theme for approval of payment on these claims is that the Workers'

Compensation Fee Schedule allows it. No-fault insurance claims do not have there own

fee schedules and health service providers are compensated under workers' compensation

codes [Insurance Law §5108]. As noted in Giugliano, the Workers' Compensation Fee

Schedule (WCFS) contains a category for "Anesthesia, Surgery, Radiology, Pathology &

Laboratory, Medicine and Physical Medicine"-parenthetically all health related

procedures which a chiropractor is not licensed to perform- as well as a separate

"Chiropractic" fee schedule. The courts in those cases allowing compensation have

reasoned because chiropractors by the statutory definition of their profession can perform

"manipulations" they may perform "manipulations under anesthesia" [emphasis added] so

long as the anesthesia is administered by an anesthesiologist or some other authorized

medical professional. The protocol for MUA also has a requirement that a medical doctor

examine the patient and approve of the procedure and that it be performed at a surgical

center or its equivalent, thereby somehow further legitimatizing the chiropractic MUA.

The conclusions in these cases have been reached even though the chiropractors

performing the MUA bill their services for the procedure under the WCFS as "surgery."

Routinely these bills are submitted with the designation for the procedures as being under

CPT Code 22505 "manipulation of spine requiring anesthesia, any region." In the current

cases Code 27194 was also used by the plaintiffs. This code is used for closed fractures

and is designated for the hip and pelvic area. It is described as "treatment of pelvic ring

fracture, dislocation, diastasis or subluxation; with manipulation, requiring more than

local anesthesia." There is no equivalent CPT Code for chiropractic performance of MUA

under the Chiropractic Schedule. Why this code was used by plaintiffs for an alleged

shoulder injury is curious or else there was no apparent billing for the shoulder

manipulations.

Rather than reaching the conclusion that chiropractors cannot do these procedures,

some Workers' Compensation Board judges and the court decisions which have

addressed this issue, concluded that MUA was allowed because it was "manipulation,"

which chiropractors can, by licensing, perform. These cases also refer to a State

Education Department letter dated September 18, 2007 which allegedly concluded that

the Education Law does not prohibit a chiropractor from performing MUA. None of these

cases concluded that this letter permitted the practice only that it was not prohibited.

Although neither side submitted a copy of this "letter," the court was able to obtain one.

And as Billy Flynn notes in the musical "Chicago" concerning the identity of [*6]"Mary

Sunshine", "things often aren't what they seem."

The letter in question is actually dated September 13, 2007 and not September 18,

2007. It is on letterhead from the State Board of Chiropractors and signed by the

Executive Secretary. It is not addressed to anyone in particular but has the salutation "To

Whom It May Concern" which in and of itself is a curious way to address a document

which by its contents is apparently authorizing chiropractors to perform MUA a

procedure not specifically granted in the licensing statute. It starts "I write in response to

your inquiry regarding chiropractic manipulation under anesthesia" yet does not indicate

who made the request.

Analysis of the contents of the letter discloses rather than an outright endorsement of

chiropractic MUA it is more akin to the wedding scene in "Fiddler On The Roof" when

Tevye asks the Rabbi if men and women are permitted to dance together.

Tevye:Well, Rabbi?

Rabbi:Dancing...Well it's not exactly forbidden, but....

Tevye:There you see? It's not forbidden.

At which point the men and women break "tradition" and begin dancing together leaving

the question unresolved.

When the entire letter is read, it is clear that all it does is say that as written the

Education Law does not prohibit MUA, it does not indicate that it is specifically

permitted. There is no discussion of the issue of whether or not the procedure is "surgery"

and whether chiropractors may perform surgery. In fact, the language of the letter

emphasizes the word "may" in regard to MUA and then sets forth limiting parameters and

caveats as to its use. It says:

While the practice act does not specifically prohibit a chiropractor from performing spinal manipulation on patients who are under anesthesia, this type of procedure may present special risks and a practitioner should carefully evaluate such use. Furthermore, the chiropractor is not authorized to order or administer anesthesia. Every chiropractor licensed in New York State must be competent to perform any procedure that they provide by virtue of education or training. Also, the procedure must be warranted by the condition of the patient and, thus, does not constitute excessive treatment, which would be a violation of Part 29 of the Regents Rules on Unprofessional Conduct. I would note that while it may be permissible in New York State for chiropractors to perform manipulations on patients under anesthesia, gaining hospital privileges and obtaining physicians willing to prescribe and administer anesthesia for this purpose must be addressed.

As pointed out later in this decision, there is nothing in the Education Law which

permits the executive secretary to expand the statutory description of the areas of practice

of a particular profession. The letter is neither an "opinion of counsel" nor does it indicate

that the opinion is [*7]that of the State Board of Chiropractic.

Education Law §6551(1) defines the practice of chiropractic.

(A)s detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

Nothing in this section permits a chiropractor to conduct a surgical procedure [FN3]

nor apparently, is "surgery" specifically prohibited to a chiropractor by Education Law

§6551(3) other than a prohibition to treating "any surgical condition of the abdomen." As

difficult as it is to believe, there apparently is no New York statute defining "surgery."

Considering barbers at one time performed surgery, hence the red in a classic barber pole,

you would think New York would want to define that term. Because it is undefined

perhaps chiropractors have the same privilege as barbers.

Stedman's Medical Dictionary, 27th Edition, defines "surgery" as "1. The branch of

medicine concerned with the treatment of disease, injury, and deformity by physical

operation or manipulation. 2. The performance or procedures of an operation."

Stedman's defines "medicine" as "2. The art of preventing or curing disease; the

science concerned with disease in all its relations. 3. The study and treatment of general

diseases or those affecting the internal parts of the body, especially those not usually

requiring surgical intervention."

Applying the Stedman's definition of "surgery" to that of chiropractic in the

Education Law, leads to the conclusion that chiropractors cannot practice surgery because

they are not engaged in the practice of "medicine." In New York chiropractic care is not

considered "medicine" neither is a chiropractor a "physician."Although chiropractors

engage in "manipulation," they do not treat "disease, injury or deformity." Nor can they

"operate" [Education Law §6551(3)]. The Education Law §6520 defines the "practice of

medicine" as "diagnosing, treating, operating or prescribing for any human disease, pain,

injury, deformity or physical condition." Chiropractors are not permitted to do any of

these things. Does MUA cross the line between "correcting" and "treating?"

It is clear then, that if MUA is a form of surgery, which the CPT Code labels it as

such, chiropractors are prohibited from engaging in it. If MUA is not a form of surgery,

then why is not it included under the Chiropractic CPT Code? [*8]

Can the court and the Workers' Compensation Board judges rely on an Education

Department letter as a basis for permitting this practice? A review of the Education Law

does not disclose any authority for the Board of Regents to expand the practice of a

profession beyond that set forth by the legislature in the statute. Education Law §6504

states:

Regulation of the professions.

Admission to the practice of the professions (licensing) and regulation of such practice shall be supervised by the board of regents...and administered by the education department, assisted by a state board for each profession....

Education Law §6506 gives the board of regents the authority to "supervise the

admission to and the practice of the professions." Education Law §6507 grants the

authority to administer the admission and practice of the professions to the state

education department and to promulgate regulations [Education Law §6507(2)(a)]. State

boards for each profession are established by Education Law §6508 for the purpose of

assisting the board of regents and the education department on "matters of licensing,

practice and conduct." The board may conduct and grade examinations, assist in other

licensing matters [Education Law §6508(2)], and conduct disciplinary proceedings

[Education Law§6508(3)].

When taken together it is apparent that these bodies are charged with regulating

professions which include both medicine and chiropractic. But there is nothing in the

statute that gives these entities the authority to expand the scope of a defined practice

beyond that which the legislature has set forth. If the general consensus is that

chiropractors should perform MUA then the statute should be changed to include MUA

and not by a letter which does not even have the authority of an "opinion of counsel" or

the imprimatur of the Board of Regents or the State Board of Chiropractic. As has been

done in the past, when new treatment techniques and diagnostic tools have evolved the

legislature has so acted. This is evidenced by the legislative history of the chiropractic

statutes. It behooves the chiropractic profession to amend the statute because if

chiropractors are performing MUA when they are not authorized to do so under the

statute, it would be "professional misconduct" under Education Law §6509(2).

This issue of whether MUA is a surgical procedure and therefore the practice of

medicine was recently litigated in Texas [Texas Board of Chiropractic Examiners v

Texas Medical Association, ___SW3d___, 2012 WL 2742554, 7/16/12]. Unlike New

York, Texas specifically defines a surgical procedure and prohibits chiropractors from

engaging in surgical procedures [Texas Occupational Code §201.002 (a)(4) and

§201.002( c)(1)]. In fact, the Texas statute in describing what is included in a "surgical

procedure" refers to those "procedures included in the surgery section of the common

procedures coding system as adopted by the Centers for Medicare and Medicaid Services

of the United States Department of Health and Human Services." The Texas Court of

Appeals ruled MUA is in fact a surgical procedure under those codes and cannot be

performed by chiropractors.

Presumably MUA in Texas is performed in the same manner as in New York, so

how can it be "surgery" in Texas and not "surgery" in New York. Is there a difference

merely because [*9]when no-fault MUA is performed in New York it is billed under

Workers' Compensation CPT schedules while Texas uses Medicare/Medicaid CPT

schedules promulgated by the federal government? That would make sense if each state

was describing two different procedures. The MUA procedure is the same so it cannot be

more than one classification.

For instance if you are asked "What's big, grey, weighs over a ton and has a trunk in

front?" the answer can be either an elephant or a Volkswagen Beetle. But in that case the

description fits two different things. If you throw in an engine, there is only one possible

answer [FN4]. Here there is agreement as to what is meant by MUA. The question becomes

whether it is really surgery. To allow MUA by chiropractors would mean that the entities

that code MUA as "surgery" are wrong in their classification of the procedure and that it

should be reclassified. If it is not "surgery" then why is it performed at "surgical centers?"

If MUA is surgery, then chiropractors cannot perform it because surgery can only be

performed by practitioners of medicine and that does not include chiropractors. This is

not to say that chiropractors do not have the skill and training to perform MUA, it is that

there is a gap in the legislation that created the parameters of the chiropractic profession.

It is the function of the legislature to correct the problem and not for the courts to expand

the definition beyond the plain language of the statute.

B. Can chiropractors manipulate parts of the body other than the vertebral column?

Assuming that chiropractors are permitted to perform MUA, to what extent can they

manipulate parts of the body other than the vertebral column? This court has been

confronted with claims by chiropractors for manipulation of not only the spine but of

other parts of the body.

In this case, according to the three procedure reports the plaintiffs prepared, they

performed MUA on the cervical spine, the thoracic spine, the lumbopelvic spine(which

included some hip manipulation) and the shoulders of Flores. The cases that have

approved these extra-spinal manipulations have focused on the language in the Education

Law describing chiropractic as able to treat "structural imbalance, distortion or

subluxations in the human body" as permitting such treatments. The problem with this

interpretation is that it ignores the plain language of the rest of the statute that the purpose

must be the "removing of nerve interference and the effects thereof where such

interference is the result of or related to distortion, misalignment or subluxation of or in

the vertebral column."

Taking the broadest interpretation of this statute, which some courts apparently have

done, then a chiropractor could conceivably treat all of the parts of the body in "Dem

Bones" because nerves reach each of them and those nerves are connected to the spine.

So a chiropractor could manipulate the toes because the nerves in those appendages hurt?

[*10]

However, the language of the statute makes it clear that the treatment has to arise

from a "distortion, misalignment or subluxation of or in the vertebral column" and not a

problem in another area of the body not generated from the spine. The problem must

originate in the spinal column and not vice versa. A strict reading of the statute permits

the chiropractor to manipulate the spinal column to relieve pain in another area of the

body. They cannot by the statute manipulate the other area to relieve the pain in that area.

Again we are back at the difference between "treatment" and "correction." If this is

something chiropractors are trained to do, then the statute has to be changed.

In the no-fault setting this means that the non-spinal area which is being treated must

not only have "nerve interference" but that nerve interference must be related to the

automobile accident. The plaintiff herein, as have other chiropractors, testified that the

manipulation is necessary to break down fibrous adhesions and scar tissue which the

patient developed. The cases supporting the procedure cite a Workers' Compensation

Board case [Aramak, 2009 WL 456874 (NY Work. Comp. Bd)] as permitting

chiropractors to perform these procedures [See also Solomon Schechter Day School ,

2006 WL 3889159 (NY Work. Comp. Bd.]. Aramak rested its conclusion on the

representation that the chiropractor was only going to perform manipulation to break-up

fibrous adhesions and scar tissue formed around the spine and not in other areas of the

body, so its applicability to more extensive manipulation must be questioned.

These holdings are interesting in view of the fact that they appear to be an expansion

of chiropractic care beyond the words of the governing regulations concerning Workers'

Compensation claims.

Limitations of chiropractic treatment.

(a) When care is required for a compensable injury, an injured employee may select to treat him or her any duly registered and licensed chiropractor authorized by the chair to render chiropractic care only if said injury consists solely of a condition which may lawfully be treated by a chiropractor as defined in section 6551 of the Education Law. If the injury does not consist of a condition which may lawfully be treated by a chiropractor or consists of multiple conditions, any one of which is outside the limits prescribed by the Education Law for chiropractic treatment, the chiropractor may not initially treat such employee for any condition but must so advise the injured employee and instruct him or her to consult a physician of the employee's choice for appropriate care and treatment. Such physician shall supervise the treatment of said condition, including the future treatment to be administered to the patient by the chiropractor. [12 NYCRR §346.1].

Based on this regulation to be an authorized treatment for Workers' Compensation

purposes, the plaintiff would have to establish that the patient's condition can only be

treated by a chiropractor and that the MUA was the appropriate treatment. Although this

is a no-fault case, the compensation is made pursuant to the Workers' Compensation CPT

Code. As there is neither a chiropractic nor a separate no-fault code for MUA, and

payment is made under the Workers' Compensation code, then the standard to be applied

to authorize treatment must be the same as in Workers' Compensation. The plaintiffs

have not shown that the patient's injury could not and [*11]should not have been treated

by a physician such as an orthopedist or neurologist, or to a lesser degree by a physical

therapist rather than by MUA.

But again, this interpretation gets back to the same problem, what exactly does the

Education Law §6551 permit a chiropractor to do.

A review of the treatment records and the testimony, establish that there is an utter

failure to prove that the condition Flores complained of was related to the motor vehicle

accident. Flores' complaints were of pain in the lower back, neck and right shoulder.

There was no complaint concerning the thoracic area of her spine, yet plaintiff felt the

need to perform MUA in that area. There was no MRI done of the thoracic spine. The

MRI of the cervical spine showed no injury whatsoever, in fact, it was a "normal

examination," so what was the need for MUA of either the cervical or thoracic area?

The patient's complaint in regard to her shoulder was only of injury to her "right"

shoulder. So why was it necessary to perform MUA on both shoulders? In fact, the MRI

which was taken of the right shoulder only and it revealed "an intrasubstance tear of the

subscapularis muscle" and "subacromial-subdeltoid bursitis." Plaintiff cannot explain

how MUA is the proper treatment for a tear of a shoulder muscle and bursitis and where a

chiropractor has the authority to treat an injury of that nature. It is unclear under which

billing code the MUA of the shoulder was submitted to the defendant as it was not listed

on plaintiffs' claim forms. There is nothing in the record, nor did plaintiff's trial

testimony, show how manipulation of the spine or of the shoulders would relieve nerve

interference in the vertebral column affecting the shoulders.

The MRI of the lumbosacral spine revealed "posterior disc herniations at L4-5 and at

L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots

bilaterally." When the court questioned the plaintiff as to the appropriateness of

performing MUA on someone with disc herniations, the witness responded there is no

danger if you know what you are doing. He produced no accepted professional studies

that supported his conclusion. In fact, if the Education Department letter stands for

anything, it warns chiropractors not to be undertaking MUA if there is some inherent risk

to the patient beyond regular chiropractic manipulation.

Also, there is no indication that the plaintiffs ever received a copy of any of the MRI

reports as they are addressed to Dr. Berkowitz with a copy to Dr. Jacobson, both medical

doctors. Did the plaintiffs even have a copy of the reports when they did the MUA's?

There is a question as to whether the plaintiffs as chiropractors are trained or permitted to

read MRI's and diagnostic tests other than X-rays. The Education Law §6551 only

discusses X-rays in regard to chiropractors and their training. Does New York permit

chiropractors to be certified to read MRI's and other more modern diagnostic tools? The

plaintiffs are licenced in New Jersey and performed the MUA there where the New

Jersey statute does recognize that chiropractor's use other diagnostic tests besides X-rays.

If the plaintiffs did not receive the actual MRI's to view even if they got copies of the

reports, how could they seriously consider performing the MUA on a patient with a disc

herniation? And if they did have the actual MRI's they have to establish they [*12]have

the training to read the MRI's,

Again, this is not to say that the plaintiffs and other chiropractors are not qualified to

perform MUA assuming that is a recognized treatment, it is that New York does not

currently allow them to do it.

Finally, plaintiff has failed to explain why it billed defendant using CPT Code 27194

which is for closed fractures in the hip and pelvic area and performed MUA in that area

when there is no record of any complaint or injury in that area by the patient.

Based on the MRI and other reports, it is difficult to conclude exactly what are the

"structural imbalance, distortion and subluxations" that Flores suffered from that the

plaintiffs sought to correct by the MUA?

This position of the plaintiffs that the MUA was safe may have been acceptable if

the plaintiff had any proof that a physician had examined the patient and approved the

MUA procedure for her. No such report was presented at trial nor do the records

submitted by the plaintiff even reveal the name of that physician. None of the three

procedure reports prepared by the plaintiffs disclose the clearing physician's name. In fact

the MUA report for the third day of procedure, July 30, 2011 lacks even the name of the

anesthesiologist.

Also, missing from the plaintiff's submissions is a consent form signed by the

patient. As this is a "surgical" procedure requiring the use of anesthesia, it would seem

that such a document is required. Because the MUA was performed on three different

dates each a week apart, an argument could be made that a consent form was needed for

each procedure.

Pubic Health Law §2805-d provides:

Limitations of medical, dental or podiatric malpractice action based on lack of informed consent

1. Lack of informed consent means the failure of the person providing

professionaltreatment or diagnosis to disclose to the patient such alternatives thereto and

the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or

podiatric practitioner under similar circumstances would have disclosed, in a manner

permitting the patient to make a knowledgeable evaluation.

2. The right of action to recover for medical, dental or podiatric malpractice based on lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body.

Although the case at bar is not a malpractice action, the language of the statute may

be helpful in resolving the issue of how to treat chiropractic MUA. As is obvious from

the statute, chiropractors are not specifically mentioned. Does this mean that they are not

required to obtain [*13]an "informed consent" from a patient? After all Education Law

§6551 does not use the terms "treatment or diagnosis" in describing chiropractic. These

terms are reserved for the practice of medicine (Education Law §6521). Or is this another

situation where "medical" malpractice is being given an interpretation beyond the

language of the Education Law and is being used to refer to all health treatment by

professionals other than those performed by dentists and podiatrists?

If it is concluded that chiropractors are not subject to obtaining informed consent

from a patient, then can it also be concluded that they cannot perform "surgery" because

informed consent is required for non-emergency surgery under the Public Health Law

and MUA is considered a non-emergency surgical procedure under the Workers'

Compensation codes.

In addition to all of the problems analyzed above, plaintiff failed to explain how the

accident caused scar tissue or fibrous adhesions to develop which required the MUA and

that the patient's complaints were not related to her general physical condition ( 40 years

old, 5'3" and 163 lbs.) or her job (medical assistant). If not related to the accident than

some other source other than the no-fault carrier should pay for the services.

Plaintiff testified that Flores met the criteria for MUA established by the National

Academy of Manipulation Under Anesthesia Physicians and went through the eight listed

items a practitioner of MUA should check before recommending MUA to a patient.

Plaintiff testified that Flores met the first seven criteria. The plaintiff indicated that the

National Academy also set forth eight diagnoses that are "responsive to MUA" and that

Flores met four of the eight criteria. A skeptic might ask if a patient had been

unresponsive to chiropractic care for the extended period that this patient underwent-over

one year of chiropractic treatment, why would you conclude that more aggressive

chiropractic care was needed rather than determining some other treatment should be

undertaken or that the patient had in fact achieved the maximum benefit?

Interestingly, the criteria relied upon by the plaintiff are issued by the "National

Academy of Manipulation Under Anesthesia Physicians" (emphasis added). As pointed

out above in New York chiropractors are not considered physicians. Stedman's Medical

Dictionary defines a physician as someone who practices medicine. So the very entity

which is establishing guidelines for MUA by definition excludes chiropractors in New

York. The clear implication is that MUA is to be performed by physicians and not

chiropractors unless physician has some other connotation.

The facts of this case trigger another line of inquiry to be addressed. The MUA's

were performed in New Jersey. The first question to be asked would be could a licensed

New York chiropractor perform MUA in New Jersey? It would seem that to perform any

chiropractic services in New Jersey, like most professions, the chiropractor would have to

be licensed there. Plaintiff's submitted copies of their New Jersey registration certificates

indicating that they are permitted to perform MUA in New Jersey. It also appears that the

definition of chiropractic services in New Jersey is much broader than that in New York.

In fact, in New Jersey [*14]chiropractors can have the title "chiropractic physician."

However, they are not included in the definition of the practice of medicine and surgery

[NJSA 45:9-5.1]. Neither side provided any information as to whether MUA would

qualify as "surgery" in New Jersey. It does appear that chiropractors in New Jersey may

be permitted to perform surgery such as MUA under a different statue.

The New Jersey statute provides: "No licensed chiropractor shall...perform surgery

as requires cutting by instruments or laser excepting adjustment of the articulations of the

spinal column or extremities"[NJSA 45:9-14.5(b)]. The definition of chiropractic in that

statutory section specifically includes manipulation of the soft tissue of the body, as well

as the spine and other joints so, presumably MUA would be a permitted practice in New

Jersey. This definition is far more liberal than that of the New York statute. In fact case

law in New Jersey holds that whether a chiropractor can do adjustments beyond the

spinal area mus be addressed in a case by case basis [Bedford v Riello, 195 NJ 210

(2008)].

Unfortunately, for the plaintiffs, the claim arose from an accident in New York, the

patient resides in New York and the claim is filed under the New York State Insurance

Law. So the New York definitions as to the scope of the services that a chiropractor may

provide and not the law of the situs of the service determines whether the plaintiffs are

entitled to payment for the MUA. This is not the place to continue the debate from

"Gypsy" as to whether New York is the center of the world as asserted by Miss Cratchitt

or New York is the center of New York as Mama Rose alleges.

It must be concluded that as the New York statute is written, chiropractors cannot

treat areas of the body outside of the spinal column unless there is a direct link between

the pain in that area and a problem which manipulation of the spinal column can

alleviate. Plaintiffs have failed to establish that Flores' treatment by an MUA was related

to the automobile accident.

C. "This is another fine mess you've gotten me into."

Without the assistance of Stan Laurel, no-fault insurance in New York is clearly in

need of reform. Since the Civil Court began tracking these cases in 2006, the number of

cases brought in New York City has exceeded 200,000 or about 25% of the court's case

load. It does appear that the number of filings has declined in 2011 & 2012 to less than

200,000 cases. The court must wonder what is in the economic structure of this system

where health care providers are willing to not be paid for services they previously

rendered to a patient and then to have to litigate the issue in the hope that some

percentage of the claims will be settled or paid after prevailing at a trial. And again the

court is only seeing the claims that result in litigation. It excludes claims that are not

pursued at all or wind up in arbitration. Is the reimbursement rate for no-fault so high

when compared to other insurance payments that it is economically feasible to absorb so

many unpaid claims? It must be questioned why highly trained professionals are so

willing to work for free. [*15]

On the other hand, why would the insurance industry continue to want to have a

system in place which is litigation generating with all its attendant expenses by its very

nature? The cost of trying cases must be less than paying the claims or else they would be

seeking to remedy the system.

In no-fault land carriers assert the "Goldilocks Rule" in regard to diagnostic testing.

Health care providers are only paid if the test is not performed "too early" or "too late"

but "just right." Also where else but in no-fault land do you get to have two attorneys

trying cases-with doctors as witnesses- where the amount in controversy is less than the

cheap seats at Yankee Stadium?

Ironically, no-fault uses the workers' compensation fee schedule to pay health care

providers. Yet, by statute, workers' compensation requires pre-approval of all non-

emergency treatments something that for some unknown reason is missing from the no-

fault law [Workers' Compensation Law Article 2; 12 NYCRR §325-1.4]. Actually there

is nothing in the no-fault law which precludes obtaining pre-approval before rendering

non-emergency treatment so why not require it by contract? Unless of course the terms of

the entire no-fault contract is generated by the State Insurance Department and because

those regulations do not include pre-approval it is barred.

Also, worthy of comparison is the language of Education Law §6731 covering

physical therapists. It limits treatments by a physical therapist to ten visits or thirty days if

the treatments were "without referral from a physician, dentist, podiatrist, nurse

practitioner or licensed midwife...."[Education Law §6731(d)]. Absent from the list are

chiropractors. No similar treatment restriction is found in regard to treatment by

chiropractors in Education Law Article 132.

Adoption of either of these standards to no-fault insurance claims would reduce the

amount of this litigation.

Part of the problem apparently is the inability of the legislature to consistently apply

the language of its own statutes. Under the Education Law Article 131, only physicians

practice "medicine" and only medical doctors may be referred to as a "physician."

Chiropractors do not practice medicine and are not physicians. The fact that the

legislature does not adhere to its own statutes is obvious when the no fault law is read

[Insurance Law Article 51]. Insurance Law §5102 defines "basic economic loss" under

the no-fault law as

(1) All necessary medical expenses incurred for:(i) medical, hospital(...)surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy(provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) non-medical remedial care and treatment in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time provided within one year after the date of the accident causing the injury if it is ascertainable that [*16]further expenses may be incurred as a result of the injury.

A reading of the above section would lead to the conclusion that chiropractors are

not covered by the no-fault statute as they are the only health service provider governed

by Education Law, Title VIII, the "Professions" other than veterinarians and mid-wives

not mentioned in the Insurance Law. The only way to include chiropractors is to say that

they are covered in the"any other professional health services" of the statute. Considering

all the other licensed professions are mentioned specifically and chiropractors have been

licensed in New York from a time before the no-fault law was enacted, what the

legislature intended must be questioned. Early cases interpreting the no-fault statutes held

that if the language of the statute was followed, chiropractic services were not covered.

Other courts held that the broadest definition of "medical" should be applied and that it

obviously included chiropractors. This of course is a complete rewriting of the law

defining medicine by the courts.

It should also be noted that chiropractors are not specifically mentioned in the

Workers' Compensation Law §13 as persons who could provide treatment to an injured

worker and a separate section was added to include chiropractors [WCL §13-l].

It is clear that almost all of the current no-fault litigation in the court system could

be eliminated by requiring "pre-approval" of all non-emergency care. Such a procedure

would eliminate legitimate health care providers having to work for free when a claim is

denied and would allow insurance carriers to investigate fraudulent claims beforehand

and not after the fact.

MUA is the "icing on the cake," "cherry on top," or "gold ring on the merry-go-

round" of the irrationality of the current no-fault system. MUA has the potentiality of

generating five different lawsuits; one from each of the two chiropractors involved; one

from the anesthesiologist; one from the pre-screening physician and one from the facility.

Each suit could be brought in a separate county in New York City because the

jurisdiction of the Civil Court is citywide and insurance carriers cannot claim they are not

present in a particular county as they do business in them all. This situation would

potentially result in five different rulings, or at a minimum two different ones such as the

screening facility gets paid and the chiropractors do not.

Where else but in no-fault land can you have the situation where the chiropractor

testifying is the same person who determined the corrections he has been giving are not

working so that he can recommend a more aggressive treatment-requiring anesthesia and

a surgical setting, to be performed by him, and who after it is done proclaims it a success.

In no-fault land the patient who received the services never testifies. The court is only

presented with the self-serving recommendation for the MUA and the self-serving

conclusion that it was successful.

It would seem that the carrier would seek permissive joinder of these claims under

CPLR §1002 as in theory, it is in the best position to know if it is being sued in different

jurisdictions in regard to claims arising from the same occurrence or at a minimum

should have the ability to check its own records to obtain that information. Why carriers

apparently refuse to do so cannot [*17]be explained.

D. Did plaintiffs prove their prima facie case?

Where a plaintiff provider, as here, proves that completed claims forms have been

submitted to the defendant carrier setting forth the fact and the amount of the services

provided and the loss sustained, and that payment of the no-fault benefits are overdue, the

provider establishes a prima facie case of medical necessity [West Tremont Medical

Diagnostic, PC. V Geico Insurance Co., 13 Misc 3d 131(A), (2006)]. However, "[w]here

the defendant insurer presents sufficient evidence to establish a defense based on a lack

of medical necessity, the burden shifts to the plaintiff which must then present its own

evidence of medical necessity" [id., citing Prince Richardson on Evidence §§3-104. 3-

202 (Farrell 11th ed.); see also Delta Diagnostic Radiology, PC v American Transit

Insurance Co., 2007 Slip Op. 52455(U)].

The court found defendant's expert, Bogdan, to be a credible witness. The witness'

testimony sufficiently demonstrated that the treatment at issue was not chiropractically

necessary. This shifted the burden back to the plaintiff to show that the treatments were

chiropractically necessary. Although Grosso testified, the court concludes that his

testimony was insufficient to establish that any chiropractic treatment, let alone MUA, of

Flores was necessary after the services were terminated by defendant after receipt of

Bogdan's ICE report.

The cause of action of each plaintiff therefore must be dismissed.

Conclusion:

For all of the reasons above, plaintiffs causes of action in both cases are dismissed.

Chiropractors are prohibited from performing MUA in New York. In addition, plaintiffs

failed to establish that the patient's injuries were causally related to the motor vehicle

accident and that a physician screened the patient before the MUA was performed.

Plaintiffs failed to establish that the MUA was chiropractically necessary.

Even if the court were to determine that MUA was chiropractically necessary the

plaintiffs are not permitted to collect the full CPT Code rate they are restricted to 68.4%

of the relative value unit allowable for medical doctors [New York State Workers'

Compensation Board Office of General Counsel letter August 14, 2009; see also Flatbush

Chiropractic, PC v Metlife Auto & Home, 35 Misc 3d 1203(A) 2012].

Again this is not to say that properly trained chiropractors should not be prohibited

from performing MUA. It is the function of the legislature to expand the definition of the

chiropractic profession and not the court system.

Exhibits, if any, will be available at the office of the clerk of the court thirty days

after receipt of a copy of this decision. [*18]

The foregoing constitutes the decision and order of the court.

Dated: August 16, 2012_________________________

Staten Island, NYHon. Philip S. Straniere

Judge, Civil Court

Footnotes Footnote 1: One of the versions of "Dem Bones" also known as "Dry Bones" or "Dem Dry Bones" an often recorded folk song attributed to James Weldon Johnson. Footnote 2: Also for some reason Bogdan "affirmed" his report and did not have it notarized. CPLR §2106 sets forth who can affirm documents rather than having to locate a notary and chiropractors are not on that list. This makes Bogdan's independent chiropractic evaluation inadmissible in this action. The question of whether an insurance carrier such as Allstate can rely on the report to terminate services is not addressed in the CPLR as it applies only to reports being used for a "pending" action and no action was pending when the report was prepared. Absent a section of the Insurance Law or an Insurance Department regulation requiring a carrier to have an affirmation/affidavit in order to deny coverage, it is apparent that Allstate could use the improperly affirmed report to terminate chiropractic services. Neither side presented any law on this question. Allstate avoided the issue at trial by having Bogdan testify and be subject to cross-examination on what records he reviewed and the extent of the ICE. Footnote 3: Ironically, there does not appear to be a definition in any New York statute or administrative rule as to what constitutes surgery. Apparently New York believes that it does not know exactly how to define surgery but knows what it is when it sees it. Footnote 4: An elephant on a motorcycle is not an acceptable alternative response.