Independent contractor defense proven

 Lumbermens Mut. Cas. Co. v A B Med. Servs., PLLC, 2020 NY Slip Op 07280 (1st Dept. 2020)

“As an initial issue, 11 NYCRR 65-3.11 (a) limits no-fault medical billing to employees of the provider that submits claims for no-fault benefits. It is submitted that Supreme Court properly granted judgment in favor of plaintiffs, because the treating providers were independent contractors, as opposed to employees. The record supports a finding that the “degree of control exercised by the purported employer” (Bynog v Cipriani Group, 1 NY3d 193, 198 [2003]), “not only over the results produced but also over the means used to produce the results” (Matter of O’Brien v Spitzer, 7 NY3d 239, 242 [2006]), was insufficient to give rise to an employer-employee relationship.

“Factors relevant to assessing control include whether the worker (1) worked at his [or her] convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” (Bynog, 1 NY3d at 198). The factors that militate against defendant’s position that the treating providers were employees include the trial testimony that: defendant could not monitor the quality of the work billed because its principal was not qualified in these fields of medicine, defendant used staffing services to find professionals, defendant’s principal could not recall giving the professionals health insurance and required them to provide their own malpractice insurance, he could not recall providing the professionals with certain nerve conduction equipment, the professionals were all part-time and free to take on other jobs, and although the principal provided the professionals with W-2 forms, he did so only because he thought he was required to do so by insurers“

Comments

Post a Comment

Popular posts from this blog

Monies paid for fraudulently procured services or supplies may be recovered under limited circumstances

  In a case with major implications, the Appellate Term for the 9th and 10th Judicial Districts reached a key compromise behind the dicta found at the Appellate Term’s holding in Fair Price v. Travelers (a precluded defense based upon fraud and unjust enrichment may be recouped in a civil action) and one of the many holdings in Cornell Medical v. Mercury (counterclaims or civil actions for paid-out monies are not permitted when the defense to the paid-out monies has been precluded). Namely, a counterclaim or civil action is permitted where the payments to the alleged fraudulent claims are made within 30-days of receipt of the bills.  To quote the court: If an insurer is precluded from asserting a defense due to its failure to pay or deny a claim within the 30-day claim determination period, it may not later seek to recover amounts it paid on the claim based on a theory of unjust enrichment ( see e.g. Cornell Med., P.C. v Mercury Cas. Co. , 24 Misc 3d 58  [App Term, 2d, 11th & 13th
Read more

Intercompany arbitration is inappropriate in New Jersey between a PIP carrier and a major medical insurance carrier

One of the interesting aspects or evolution of New Jersey PIP law is that is has devolved from a comprehensive all encompassing benefit to one that is either limited or non-existent. The historians will remember that until the 1990 Fair Automobile Insurance Reform Act, there was not coverage limit. That changed to $250,000 in 1990 along with the ability to have major medical be deemed primary.. In 1998, AICRA brought the common $15,000 PIP policies and mandated arbitration.   The question that lurked is what happened when major medical said go to PIP, PIP as secondary pays and then seeks to subrogate against the major medical carrier. The Appellate Division said you’re out of luck. (1) “When a PIP-as-secondary insurer receives a claim eligible for primary coverage, it must deny coverage and send the insured a notice advising them to submit the claim to their health insurer” (2) ” Health insurers are also required to make prompt payment of claims, but are governed by N.J.A.C. 11:22-1.1
Read more

When many new Court of Appeals Judge is a former prosecutor

This is not too off topic. The Court of Appeals is run by the prior DA of Westchester. Nassau County DA Singas has now been elevated to the Court of Appeals. Finally, Judge Garcis was a former prosecutor. Judge Cannataro was just elevated to the Court of Appeals but he reminded me of Judge Jeremy Weinstein – a professional administration judge, Not a bad thing mind you. So how does a bench with a dearth of Civil non-criminal experience handle insurance disputes and personal injury disputes? I really do now know. I have read on the criminal law blogs that the defense bar is crying, and I can understand their concern. But it seems that much of the decisions seem to be not necessarily on the pro-consumer side.  Simmons v Trans Express Inc. , 2021 NY Slip Op 03484 (2021)(in effect killing a wage and hour case through limited the bar on collateral estoppel found in the uniform small claims acts);  Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. ,
Read more