Thursday, February 28, 2013

Whiplash: Neck Trauma and Treatment


If you have ever been in a car crash and experienced pain in your neck, you have most likely had whiplash. Whiplash, also called neck sprain or neck strain, is an injury to the soft tissues of the neck. It is usually caused by sudden extension (backward movement of the neck) and flexion (forward movement of the neck). This type of injury is often the result of rear-end car crashes. Severe whiplash can also include injury to the intervertebral joints, discs, ligaments, cervical muscles and nerve roots.

What Is It?
Whiplash is a collective term used to describe the injuries to the cervical spine (neck). This condition often results from an automobile collision, which suddenly forces the head and neck to whip back and forth (hyperflexion/hyperextension).

Symptoms of Whiplash
Most people experience neck pain either immediately after the injury or several days later. Other symptoms of whiplash may include the following:

  • Neck stiffness
  • Injuries to the muscles and ligaments (myofascial injuries)
  • Headache and dizziness (symptoms of a concussion)
  • Difficulty swallowing and chewing and hoarseness (could indicate injury to the esophagus and larynx)
  • Abnormal sensations such as burning or prickling (this is called paresthesias)
  • Shoulder pain
  • Back pain

Diagnosis of Whiplash
Although whiplash usually only causes damage to the soft tissues of the neck, the physician will take x-rays of the cervical spine for reference in case of delayed symptoms and to rule out other spinal problems or injuries.

Fortunately, whiplash is treatable and most symptoms resolve completely. Initially, whiplash is treated with a soft cervical collar. This collar may need to be worn for 2 to 3 weeks.

Other treatments for individuals with whiplash may include the following:

  • Heat therapy to relieve muscle tension and pain
  • Pain medications such as analgesics and non-steroidal anti-inflammatory drugs (NSAIDs)
  • Muscle relaxants
  • Range of motion exercises and physical therapy

For most patients, the symptoms of whiplash usually subside in 2 to 4 weeks. Patients who continue to have symptoms despite treatment may find temporary relief by keeping the neck immobilized using a halter in the office or at home. This is referred to as cervical traction. Local anesthetic injections may also be helpful.

If symptoms continue or worsen after 6 to 8 weeks, further x-rays and other diagnostic testing may be necessary to see if the patient suffered a more severe injury. Severe extension injuries like whiplash can damage the intervertebral discs. If this occurs, surgical repair of the discs may become necessary.



 For more information:- Some of our clients have suffered this kind of injuries due to a serious accident. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.

Tuesday, February 26, 2013

Large Pain and Suffering Verdict Affirmed for Teenager with Fractured Leg and Degloving Injury

Posted in Ankle Injuries, Leg Injuries

On November 19, 2005, at about 7 p.m., Ernest Lewis, then 13 years old, was on his way home from church walking towards the bus stop at 145th Street and Convent Avenue in Manhattan. He saw a bus ahead and ran along the sidewalk to catch it before the driver pulled away.
Ernest reached the rear of the 60 foot long stopped bus and tapped the side with his hands to alert the driver but as Ernest was going toward the front to get on the bus, he fell under the wheel near the sidewalk, at the middle of the bus. At the same time, the bus began to pull out of the stop and ran over his legs with the right middle tire.
Ernest sustained very significant leg injuries and a lawsuit was brought on his behalf alleging that the bus driver was negligent because he pulled away from the bus stop when it was unsafe to do so.
The jury heard testimony about where Ernest was when the bus moved out, what the driver saw and heard before moving and on March 3, 2011 they returned a verdict finding the driver 100% at fault. They then heard testimony about Ernest’s injuries and awarded him pain and suffering damages in the sum of $6,500,000 ($2,500,000 past – five years, $4,000,000 future – 10 years).
In Lewis v. New York City Transit Authority (1st Dept. 2012) both the liability and damages verdict have been affirmed on appeal.
The decision sets forth that plaintiff sustained an open fracture of his distal fibula and a degloving injury of his ankle and lower leg (the traumatic tearing away of tissue and muscle) resulting in extensive hospitalization, surgeries, arthritic changes and a need for future ankle fusion. Here are the details of plaintiff’s treatment:
  • open reduction and internal fixation surgery (with screw and rod through the length of the fibula)
  • external fixation applied to right leg for three months
  • placement of syndesmotic screw between tibia and fibula
  • five irrigation and debridement and plastic surgical procedures for highest grade of severity of tissue loss (including an eight hour surgery to transplant abdominal muscle to his calf and a 400 square centimeter skin graft from his thigh)
  • surgery to transplant blood vessels
  • total of eight surgical procedures in the three months post-accident
  • left ankle casted for six weeks for suspected calcaneus fracture
  • hospital in-patient for three and a half weeks, 10 weeks of in-patient physical therapy and 14 months of home care

Plaintiff’s prognosis is poor:
  • substantially limited range of motion in all aspects of his right ankle
  • arthritis presence indicates the need for ankle replacement or fusion surgery in five years
  • permanent scarring on abdomen and leg with dessication (dryer skin caused by lack of any oil producing glands leading to permanent chronic skin cracking and injury susceptibiliy
  • inability to walk without limping by the end of many days
  • embarrassment and depression
Inside Information:
  • Plaintiff’s main treating physicians – an orthopedic surgeon and a plastic surgeon – testified on his behalf; however, while the defense had plaintiff examined before trial by three different physicians, no doctor testified for the defense.
  • The jury’s award of future pain and suffering damages covered a period of only 10 years even though the judge charged the jury that plaintiff’s life expectancy was 57 years and the testimony of plaintiff’s physicians as to permanency was unchallenged. Plaintiff’s counsel surmised that the jurors must have had some knowledge of the workings of New York’s structured settlement law (CPLR 5041) that limits (i.e., structures in the form of an annuity) future pain and suffering payments to a period of 10 years.


For more information:- Some of our clients have suffered this kind of injuries due to a serious accident. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.

    Tuesday, February 19, 2013

    Spinal Disc Herniation

    A spinal disc herniation (prolapsus disci intervertebralis) is a medical condition affecting the spine due to trauma, lifting injuries, or idiopathic (unknown) causes, in which a tear in the outer, fibrous ring (annulus fibrosus) of an intervertebral disc (discus intervertebralis) allows the soft, central portion (nucleus pulposus) to bulge out beyond the damaged outer rings. Tears are almost always postero-lateral in nature owing to the presence of the posterior longitudinal ligament in the spinal canal. This tear in the disc ring may result in the release of inflammatory chemical mediators which may directly cause severe pain, even in the absence of nerve root compression.

    Disc herniations are normally a further development of a previously existing disc "protrusion", a condition in which the outermost layers of the annulus fibrosus are still intact, but can bulge when the disc is under pressure. In contrast to a herniation, none of the nucleus pulposus escapes beyond the outer layers.

    Most minor herniations heal within several weeks. Anti-inflammatory treatments for pain associated with disc herniation, protrusion, bulge, or disc tear are generally effective. Severe herniations may not heal of their own accord and may require surgical intervention.

    The condition is widely referred to as a slipped disc, but this term is not medically accurate as the spinal discs are fixed in position between the vertebrae and cannot "slip".


    Normal situation and spinal disc herniation in cervical vertebrae.

    Some of the terms commonly used to describe the condition include herniated disc, prolapsed disc, ruptured disc and slipped disc. Other phenomena that are closely related include disc protrusion, pinched nerves, sciatica, disc disease, disc degeneration, degenerative disc disease, and black disc.

    The popular term slipped disc is a misnomer, as the intervertebral discs are tightly sandwiched between two vertebrae to which they are attached, and cannot actually "slip", or even get out of place. The disc is actually grown together with the adjacent vertebrae and can be squeezed, stretched and twisted, all in small degrees. It can also be torn, ripped, herniated, and degenerated, but it cannot "slip". Some authors consider that the term "slipped disc" is harmful, as it leads to an incorrect idea of what has occurred and thus of the likely outcome. However, during growth, one vertebral body can slip relative to an adjacent vertebral body. This congenital deformity is called spondylolisthesis

    Signs and symptoms

    Symptoms of a herniated disc can vary depending on the location of the herniation and the types of soft tissue that become involved. They can range from little or no pain if the disc is the only tissue injured, to severe and unrelenting neck or low back pain that will radiate into the regions served by affected nerve roots that are irritated or impinged by the herniated material. Often, herniated discs are not diagnosed immediately, as the patients come with undefined pains in the thighs, knees, or feet. Other symptoms may include sensory changes such as numbness, tingling, muscular weakness, paralysis, paresthesia, and affection of reflexes. If the herniated disc is in the lumbar region the patient may also experience sciatica due to irritation of one of the nerve roots of the sciatic nerve. Patients with L3 or L5 herniated disc (usually affecting the knee and leg) also have a high chance of experiencing decreased sexual performance ( erectile dysfunction ) due to the tissue involved with the penile muscle tissue. If the extruded nucleus pulposus material doesn't press on the p tissues or muscles, patients may not experience any reduced sexual function symptoms. Unlike a pulsating pain or pain that comes and goes, which can be caused by muscle spasm, pain from a herniated disc is usually continuous or at least is continuous in a specific position of the body.

    It is possible to have a herniated disc without any pain or noticeable symptoms, depending on its location. If the extruded nucleus pulposus material doesn't press on soft tissues or nerves, it may not cause any symptoms. A small-sample study examining the cervical spine in symptom-free volunteers has found focal disc protrusions in 50% of participants, which suggests that a considerable part of the population can have focal herniated discs in their cervical region that do not cause noticeable symptoms.

    Typically, symptoms are experienced only on one side of the body. If the prolapse is very large and presses on the spinal cord or the cauda equina in the lumbar region, both sides of the body may be affected, often with serious consequences. Compression of the cauda equina can cause permanent nerve damage or paralysis. The nerve damage can result in loss of bowel and bladder control as well as sexual dysfunction. This disorder is called cauda equina syndrome.


    Disc herniations can result from general wear and tear, such as when performing jobs that require constant sitting and squatting. However, herniations often result from jobs that require lifting. Traumatic injury to lumbar discs commonly occurs when lifting while bent at the waist, rather than lifting with the legs while the back is straight. Minor back pain and chronic back tiredness are indicators of general wear and tear that make one susceptible to herniation on the occurrence of a traumatic event, such as bending to pick up a pencil or falling. When the spine is straight, such as in standing or lying down, internal pressure is equalized on all parts of the discs. While sitting or bending to lift, internal pressure on a disc can move from 17 psi (lying down) to over 300 psi (lifting with a rounded back).[citation needed]

    Herniation of the contents of the disc into the spinal canal often occurs when the anterior side (stomach side) of the disc is compressed while sitting or bending forward, and the contents (nucleus pulposus) get pressed against the tightly stretched and thinned membrane (annulus fibrosis) on the posterior side (back side) of the disc. The combination of membrane thinning from stretching and increased internal pressure (200 to 300 psi) results in the rupture of the confining membrane. The jelly-like contents of the disc then move into the spinal canal, pressing against the spinal nerves, thus producing intense and usually disabling pain and other symptoms.[citation needed]

    There is also a strong genetic component. Mutation in genes coding for proteins involved in the regulation of the extracellular matrix, such as MMP2 and THBS2, has been demonstrated to contribute to lumbar disc herniation.


    The majority of spinal disc herniation cases occur in lumbar region (95% in L4-L5 or L5-S1). The second most common site is the cervical region (C5-C6, C6-C7). The thoracic region accounts for only 0.15% to 4.0% of cases.

    Herniations usually occur posterolaterally, where the annulus fibrosis is relatively thin and is not reinforced by the posterior or anterior longitudinal ligament in the cervical spinal cord, a symptomatic posterolateral herniation between two vertebrae will impinge on the nerve which exits the spinal canal between those two vertebrae on that side. So for example, a right posterolateral herniation of the disc between vertebrae C5 and C6 will impinge on the right C6 spinal nerve. The rest of the spinal cord, however, is oriented differently, so a symptomatic posterolateral herniation between two vertebrae will actually impinge on the nerve exiting at the next intervertebral foramen down.So for example, a herniation of the disc between the L5 and S1 vertebrae will impinge on the S1 spinal nerve, which exits between the S1 and S2 vertebrae.


    Cervical disc herniations occur in the neck, most often between the fifth & sixth (C5/6) and the sixth and seventh (C6/7) cervical vertebral bodies. Symptoms can affect the back of the skull, the neck, shoulder girdle, scapula, shoulder, arm, and hand. The nerves of the cervical plexus and brachial plexus can be affected.


    Lumbar disc herniations occur in the lower back, most often between the fourth and fifth lumbar vertebral bodies or between the fifth and the sacrum. Symptoms can affect the lower back, buttocks, thigh, anal/genital region (via the Perineal nerve), and may radiate into the foot and/or toe. The sciatic nerve is the most commonly affected nerve, causing symptoms of sciatica. The femoral nerve can also be affected and cause the patient to experience a numb, tingling feeling throughout one or both legs and even feet or even a burning feeling in the hips and legs.


    There is now recognition of the importance of “chemical radiculitis” in the generation of back pain. A primary focus of surgery is to remove “pressure” or reduce mechanical compression on a neural element: either the spinal cord, or a nerve root. But it is increasingly recognized that back pain, rather than being solely due to compression, may also be due to chemical inflammation. There is evidence that points to a specific inflammatory mediator of this pain. This inflammatory molecule, called tumor necrosis factor-alpha (TNF), is released not only by the herniated disc, but also in cases of disc tear (annular tear), by facet joints, and in spinal stenosis In addition to causing pain and inflammation, TNF may also contribute to disc degeneration.


    Diagnosis is made by a practitioner based on the history, symptoms, and physical examination. At some point in the evaluation, tests may be performed to confirm or rule out other causes of symptoms such as spondylolisthesis, degeneration, tumors, metastases and space-occupying lesions, as well as to evaluate the efficacy of potential treatment options.

    Physical examination

    Main article: Straight leg raise

    The Straight leg raise may be positive, as this finding has low specificity; however, it has high sensitivity. Thus the finding of a negative SLR sign is important in helping to "rule out" the possibility of a lower lumbar disc herniation. A variation is to lift the leg while the patient is sitting. However, this reduces the sensitivity of the test.


    In the majority of cases, spinal disc herniation doesn't require surgery, and a study on sciatica, which can be caused by spinal disc herniation, found that "after 12 weeks, 73% of patients showed reasonable to major improvement without surgery." The study, however, did not determine the number of individuals in the group that had sciatica caused by disc herniation.

    Initial treatment usually consists of non-steroidal anti-inflammatory pain medication (NSAIDs), but the long-term use of NSAIDs for patients with persistent back pain is complicated by their possible cardiovascular and gastrointestinal toxicity. An alternative often employed is the injection of cortisone into the spine adjacent to the suspected pain generator, a technique known as “epidural steroid injection”.Epidural steroid injections "may result in some improvement in radicular lumbosacral pain when assessed between 2 and 6 weeks following the injection, compared to control treatments. Complications resulting from poor technique are rare.

    Ancillary approaches, such as rehabilitation, physical therapy, anti-depressants, and, in particular, graduated exercise programs, may all be useful adjuncts to anti-inflammatory approaches.


    Non-surgical methods of treatment are usually attempted first, leaving surgery as a last resort. Pain medications are often prescribed as the first attempt to alleviate the acute pain and allow the patient to begin exercising and stretching. There are a variety of other non-surgical methods used in attempts to relieve the condition after it has occurred, often in combination with pain killers. They are either considered indicated, contraindicated, relatively contraindicated, or inconclusive based on the safety profile of their risk-benefit ratio and on whether they may or may not help:

    Surgical options

    • Chemonucleolysis - dissolves the protruding disc
    • IDET (a minimally invasive surgery for disc pain)
    • Discectomy/Microdiscectomy - to relieve nerve compression
    • Tessys method - a transforaminal endoscopic method to remove herniated discs
    • Laminectomy - to relieve spinal stenosis or nerve compression
    • Hemilaminectomy - to relieve spinal stenosis or nerve compression
    • Lumbar fusion (lumbar fusion is only indicated for recurrent lumbar disc herniations, not primary herniations)
    • Anterior cervical discectomy and fusion (for cervical disc herniation)
    • Disc arthroplasty (experimental for cases of cervical disc herniation)
    • Dynamic stabilization
    • Artificial disc replacement, a relatively new form of surgery in the U.S. but has been in use in Europe for decades, primarily used to treat low back pain from a degenerated disc.
    • Nucleoplasty

    Surgical goals include relief of nerve compression, allowing the nerve to recover, as well as the relief of associated back pain and restoration of normal function.


    Rehabilitation of a herniated disc varies greatly upon a patient’s condition. Major factors taken into consideration are the patient’s pain threshold and severity of injury. [Degree of injury] ranges from some minor discomfort to immense pain that causes movement restrictions *. Possible sciatica symptoms are also taken into account when discussing a patient’s discomfort.


    A module of rehabilitation is electrostimulation * which is commonly used in the physical therapy field. Electrostimulation therapy includes placement of electrode pads proximal to the strained or weakened erector spinae surrounding the herniated disc.

    Laser Light Therapy

    [Laser light therapy] is a light utilizing module with an instrument that emits the therapeutic light directly onto the injured area.

    Ultrasound Therapy

    Ultrasound* is similar to laser therapy in its direct application to damaged tissues but utilizes vibrations in a crystal-containing handheld unit.

    Hot/Cold Therapy

    A general form of therapy is the use of ice packs and heat packs which are usually wrapped in a towel and applied directly.


    Weightlifting has been used in conjunction with the aforementioned therapeutic modalities. Gasiorowski’s research proves that patients who qualify for surgical procedures can alternatively select weightlifting to avoid risks of surgery. Weightlifting involves the use of multigym machines, free-weights, and barbells. As a part of this type of therapy, plyometric exercises were implemented to help correct any imbalances in the patient’s gait that resulted from disc herniation *.


    Stages of Spinal Disc Herniation

    Disc herniation can occur in any disc in the spine, but the two most common forms are lumbar disc herniation and cervical disc herniation. The former is the most common, causing lower back pain (lumbago) and often leg pain as well, in which case it is commonly referred to as sciatica.

    Lumbar disc herniation occurs 15 times more often than cervical (neck) disc herniation, and it is one of the most common causes of lower back pain. The cervical discs are affected 8% of the time and the upper-to-mid-back (thoracic) discs only 1 - 2% of the time.

    The following locations have no discs and are therefore exempt from the risk of disc herniation: the upper two cervical intervertebral spaces, the sacrum, and the coccyx.

    Most disc herniations occur when a person is in their thirties or forties when the nucleus pulposus is still a gelatin-like substance. With age the nucleus pulposus changes ("dries out") and the risk of herniation is greatly reduced. After age 50 or 60, osteoarthritic degeneration (spondylosis) or spinal stenosis are more likely causes of low back pain or leg pain.

    • 4.8% males and 2.5% females older than 35 experience sciatica during their lifetime.
    • Of all individuals, 60% to 80% experience back pain during their lifetime.
    • In 14%, pain lasts more than 2 weeks.
    • Generally, males have a slightly higher incidence than females.


    Because there are various causes for back injuries, prevention must be comprehensive . Back injuries are predominant in manual labor so the majority low back pain prevention methods have been applied primarily toward biomechanics Prevention must come from multiple sources such as education, proper body mechanics, and physical fitness.


    Education should emphasize not lifting beyond ones capabilities and giving the body a rest after strenuous effort. Over time, poor posture can cause the IVD to tear or become damaged. Striving to maintain proper posture and alignment will aid in preventing disc degradation


    Exercises that are used to enhance back strength may also be used to prevent back injuries. Back exercises include the prone press-ups, transverse abdominus bracing, and floor bridges. Abdominal bracing protects against joint and disc injury. If pain is present in the back, the stabilization muscles of the back are weak and a person needs to train the trunk musculature. Another preventative measure is to not work ourselves past fatigue. Signs of fatigue include shaking, poor coordination,muscle burning and loss of the transverse abdominal brace.Individuals who engage in power lifting place their bodies under heavy stress Barbells are common tools used in strength training.The usage of lumbarsacral support belts may restrict movement at the spine and support the back during lifting


    For more information:- Some of our clients have suffered this kind of injuries due to a serious accident. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.

    Friday, February 15, 2013

    New No-Fault Regulations to Take Effect April 1 in NY Car Accidents Cases

    David M. Barshay

    New York Law Journal


    For nearly a year now, the industry has been buzzing about the proposed changes to 11 NYCRR 65-3 (Insurance Regulation No. 68-C), some speculating that the proposed changes would spell the end of no-fault insurance as we know it. The proposed Fourth Amendment to 11 NYCRR 65-3 was initially released in May 2012 as part of the Cuomo administration's aggressive insurance reform campaign aimed at ending no-fault fraud and stopping the rapid rise in automobile insurance rates.

    According to the Department of Financial Services, the proposed new amendment was cultivated with two predominant goals in mind: to prevent health care providers from being paid for services they do not actually provide; and to address certain technical issues that may be used to prevent a decision on a claim or keep an otherwise faulty claim open. Both of these issues, according to the department, increase costs to consumers.

    To tackle these issues, the department's amendment would: (1) do away with certain statutory requirements, which in effect require insurers to pay for treatments that were never actually provided or pay more than the established fee schedule for a given service; (2) prevent health care providers from ignoring requests for verification concerning the medical necessity of treatment by setting a 120-day deadline to provide such requested information; and (3) close the apparent loophole that requires insurers to pay for non-rendered medical services simply because of technical errors made by those insurers during the claims process.

    On the whole, both insurers and applicants for benefits did not object to the Superintendent's attempts to protect consumers from unjust depletion of benefits by attempting to streamline the claims process, limit excessive billing or "phantom billing," and limit litigation over technicalities in the claims process. There were, however, concerns that the changes would be placing an unfair and disproportionate burden on applicants.

    Nevertheless, on Jan. 30, 2013, the proposed amendment was officially adopted and will take effect on April 1, 2013. The amendment adds the following provisions to the existing regulations:



    Phantom Billing, Over-Billing

    With regard to billing for services not actually performed and/or billed in excess of the New York State Workers' Compensation fee schedule, the current law requires insurers to pay for these claims if they fail to timely process such, either through a timely denial or verification request. The amendment adds two new subdivisions to section 65-3.8, providing that no payment is due where the treatments were not actually provided or to the extent that the fees charged exceeded the fee schedule, effectively abrogating the Court of Appeals holding in Fair Price Medical Supply v. Travelers Indem., 10 NY3d 556 (2008).

    Specifically, Subdivisions (g) through (j) of section 65-3.8 are re-lettered subdivisions (i) through (l) and new subdivisions (g)??and (h) are added to read as follows:

    (g) (1) Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

    (i) When the claimed medical services were not provided to an injured party; or

    (ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.

    (h) With respect to a denial of claim (NYS Form N-F 10), an insurer's non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim.

    As a result, an insurer is no longer precluded from denying payment on these grounds beyond the statutory period. The justification for this change is that when providers over-bill or bill for phantom services, the consumer's no-fault monetary limit, typically $50,000, is unjustly depleted.

    The new regulation does not explicitly state that billing in excess of the mandated fee schedule or billing for services not rendered are non-waivable defenses, but rather that proof of the fact and amount of loss sustained shall not be deemed to be received by the insurer in the first instance, a condition precedent to coverage, when the applicant for benefits has billed in excess of the mandated fee schedule and/or for services not rendered. Further, and crucially, amid concerns that the new amendment would result in the denial of a claim in its entirety when the applicant for benefits has billed in excess of the mandated fee schedule, not just to the extent of the excess, the Superintendent has clearly stated that only the excess portion of an excessive bill is not due, rather than the entire bill.

    This amendment, applicable to medical services rendered on or after April 1, 2013, will have a tremendous impact on the current state of no-fault law.

    Time Limit for Responding

    Currently, an insurer is required, within 30 days of receiving a no-fault claim from a health care provider, to pay or deny the claim, or, within 15 days, send a request for additional information to verify the claim. Once the insurer receives verification, it has 30 additional days to pay or deny the claim. However, there is currently no statutory deadline for a provider to respond to a verification request. Moreover, an insurer is not permitted to deny or close a claim if it never receives the requested verification. As a result, some claims remain open, or tolled, indefinitely. This can become very costly for insurers as under the law, insurers must pay a very high interest rate on delayed payments.

    The amendment addresses this issue by setting a strict deadline for responding to the insurer's verification request. The healthcare provider must now provide a response within 120 days of an insurer's verification request, or provide reasonable justification why it cannot do so. Should the applicant fail to do one or the other, the amendment permits an insurer to deny the claim, thus speeding up the claims process and reducing the number of claims that remain tolled indefinitely.

    Specifically, new subdivisions (o) and (p) are added to section 65-3.5 to read as follows:

    (o) An applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply. This subdivision shall not apply to a prescribed form (NF-Form) as set forth in Appendix 13 of this Title, medical examination request, or examination under oath request. This subdivision shall apply, with respect to claims for medical services, to any treatment or service rendered on or after April 1, 2013 and with respect to claims for lost earnings and reasonable and necessary expenses, to any accident occurring on or after April 1, 2013.

    (p) With respect to a verification request and notice, an insurer's non-substantive technical or immaterial defect or omission, as well as an insurer's failure to comply with a prescribed time frame, shall not negate an applicant's obligation to comply with the request or notice. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013.

    Further, paragraph (3) of section 65-3.8(b) is amended to read as follows:

    (3) Except as provided in subdivision (e) of this section, an insurer shall not issue a denial of claim form (NYS form N-F 10) prior to its receipt of verification of all of the relevant information requested pursuant to [section] sections 65-3.5 and 65-3.6 of this Subpart (e.g., medical reports, wage verification, etc.). However, an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart. This subdivision shall not apply to a prescribed form (NF Form) as set forth in Appendix 13 of this Title, medical examination request, or examination under oath request. This paragraph shall apply, with respect to claims for medical services, to any treatment or service rendered on or after April 1, 2013, and with respect to claims for lost earnings and reasonable and necessary expenses, to any accident occurring on or after April 1, 2013.

    In order to comply with this new regulation, applicants will be burdened with additional paperwork and internal procedure changes, as they will now be required to provide additional justification for non-compliance and to ensure timeliness of their responses. However, insurers will share in this burden, as the amendment mandates that they must notify their policyholders of the new time-frame requirement and that failure to adhere to the requirement may result in a denial of the claim.

    Critically, there are several important exceptions to the 120-day verification rule. The new provision will not apply to a prescribed form (NF-Form), a medical examination request, or an examination under oath request.16 This carve-out should provide some relief to applicants, since a large percentage of verification requests involve these items. However, because it is standard practice in the industry for insurers to request multiple items in one verification request, it raises the question of whether the 120-day deadline applies to a single request that contains both exempted and non-exempted items. Additionally, the amended regulation explicitly stipulates that the applicant is only required to provide, within 120 days of the initial request, only such verification that is in the applicant's possession or control, or provide written proof providing reasonable justification for the failure to comply.17 Finally, it is also important to note that the new provision regarding verification requests also provides that "an insurer's failure to comply with a prescribed time frame, shall not negate an applicant's obligation to comply with the request or notice."

    Technical Defects

    Under the current no-fault law, if there is an insignificant, non-substantive or technical defect in an insurer's otherwise presumably valid verification request or denial, the applicant may seek to challenge its legitimacy through the courts or arbitration.19 In an effort to cut down on what the Department of Financial Services views as unnecessary litigation and delay, the new amendment explicitly provides that an applicant's obligation to comply with a notice or verification request is not negated—and a denial of claim is not invalidated—due to a non-substantive technical or immaterial defect contained in any of these documents.

    With regard to a denial of claim form (NYS Form NF-10), subsection 65-3.8 (h) provides that "an insurer's non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim. The subdivision will be applicable to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013."With respect to a verification request and notice, subsection 65-3.5(p) provides that "an insurer's non-substantive technical or immaterial defect or omission, as well as an insurer's failure to comply with a prescribed time frame, shall not negate an applicant's obligation to comply with the request or notice. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013."

    Notably absent from the new regulation is any definition or description of what constitutes a "non-substantive technical or immaterial defect or omission." Such glaring ambiguity will inevitably create a situation where the courts and arbitrators will be called upon to offer clarification and conclusiveness. Despite its best efforts, it seems that the Department of Financial Services, in trying to craft an amendment that would reduce unnecessary litigation and speed up the resolution of claims, has created a new potential "loophole" to be litigated for years to come.

    David M. Barshay is a member of Baker Sanders, in Garden City. Jennifer L. Zeidner, a senior associate with the firm, assisted in the preparation of this article.


     For more information:- The Garcia Law Firm, P.C. was able to successfully handle no fault cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.


    Wednesday, February 6, 2013


    Question: What is Pain Management?


    Pain management is a branch of medicine that applies science to the reduction of pain. It covers a wide spectrum of conditions including neuropathic pain, sciatica, postoperative pain and more.


    Answer: Pain management is a rapidly growing medical specialty that takes a multi-disciplinary approach to treating all kinds of pain. Dr. Sameh Yonan, a pain management specialist at the Cleveland Clinic, says "we evaluate, rehabilitate and treat people in pain." Your doctor may refer you to pain management if she or he determines that your pain has become out of control.

    Pain Management Specialists: What They Do, How to Find One

    Doctors who specialize in pain management recognize the complex nature of pain, and a pain doctor "approaches the problem from all directions," Yonan said. Ideally, treatment at a pain clinic is patient-centric, but in reality this may depend on the available resources of the institution. Currently, there are no established standards for the types of disciplines that must be included, and this is another reason why treatment offerings will vary from clinic to clinic.

    But at the very least, experts say that a facility should offer to patients three types of physicians: a coordinating physician, who provides consultation to specialists on your behalf, a physical rehabilitation specialist, and a psychiatrist, to help you deal with any accompanying depression or anxiety, especially if you have chronic pain.

    Other medical specialties represented in pain management are anesthesiology, neurosurgery and internal medicine. Your coordinating physician may also refer you for services from occupational medicine specialists, social workers and/or alternative and complementary medicine practitioners.

    To qualify as a pain management specialist in the eyes of the American Board of Medical Specialties, a health care provider should be an MD with board certification in at least one of the following specialties:

    ·         Anesthesiology

    ·         Physical rehabilitation

    ·         Psychiatry and neurology.

    Dr. James Dillard, an assistant professor of medicine at Columbia University College of Physicians and Surgeons, says that the pain management physician should also have her or his practice limited to that specialty in which they hold the certification. You can check to see if the doctors at the pain management clinic you are considering are board certified by going to the American Board of Medical Specialties web site.

    Goals of Pain Management

    While some types of pain come from primary sources such as headaches, and others from secondary sources such as from surgery, the field of pain management treats all of it as a disease. This allows for the application of science, and the latest advances in medicine to relieve your pain. And while many patients, especially those in chronic pain, see a psychiatrist or therapist as part of the experience, learning to cope with pain is less and less the focus of treatment.

    "We now have many modalities, including medication, interventional pain management techniques (nerve blocks, spinal cord stimulators and similar treatments), along with physical therapy and alternative medicine to help reduce the pain," says Yonan.

    The goal of pain management is to minimize pain, rather than eliminate it. This is because quite often it is not possible to completely do away with it. Two other goals are to improve function and increase quality of life. These three goals go hand-in-hand.

    As a first-time patient in a pain management clinic, you might experience the following:

    ·         Evaluation.

    ·         Diagnostic tests, if necessary, as determined in the evaluation.

    ·         Referral to surgeon, if indicated by the tests and evaluation.

    ·         Interventional treatment, such as injections or spinal cord stimulation.

    ·         Physical therapy to increase range-of-motion and strength, and to prepare you to go back to work.

    ·         Psychiatry to deal with depression, anxiety and/or other issues that may accompany your chronic pain.

    ·         Alternative medicine to provide a complement to your other treatments.

    Back and neck pain sufferers who do best with a pain management program, says Yonan, are those who have had multiple back surgeries, including failed surgeries, and are still in pain, those with neuropathy, and those for whom it has been determined that surgery would not benefit their condition.

    "People who have become addicted to pain medication actually need more sophisticated help than what a pain management program can offer them. A chronic pain rehab program is a better choice for these people," he says.

    According to Pain Physician, results from research studies on pain management are not always applicable to the problems patients come in with to the clinics on a day-to-day basis. Unfortunately, this has a negative effect on insurance reimbursement and other payment arrangements, as well as standardization of this medical specialty.

    "Better understanding of pain syndromes by communities and insurance companies and more studies on pain will help increase insurance coverage for pain management treatments. In the future, the use of technology will help improve the outcomes of interventional pain management techniques," Yonan says.

    Manchikanti, L. MD, Mark V. Boswell, M. MD, PhD., James Giordano, J. PhD Evidenced Based Interventional Pain Management: Principles, Problems, Potential and Applications Pain Physician 2007; 10:329-356
    Personal Interview. Dr. Sameh Yonan, MD, Pain Management Specialist at Hillcrest, Willoughby and South Pointe Pain Centers at Cleveland Clinic Health System
    James N. Dillard, MD., DC. CAc. The Chronic Pain Solution: Your Personal Path to Pain Relief Bantam Dell a division of Random House New York 2003



    For more information:- Some of our clients have suffered injuries that require a Pain Management Doctor due to a serious accident. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.