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MIRTO v. AMALGAMATED RETAIL INS. FUND

April 11, 1995

JOSEPH R. MIRTO, D.C.P.C., Plaintiff, against AMALGAMATED RETAIL INSURANCE FUND, Defendant.

DEBORAH A. BATTS, U.S.D.J.


The opinion of the court was delivered by: DEBORAH A. BATTS

Deborah A. Batts, United States District Judge.

 Plaintiff Joseph R. Mirto, D.C.P.C., brings this action against defendant Amalgamated Retail Insurance Fund to recover benefits under the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). The defendant moves for suinmary judgment pursuant to Federal Rule of Civil Procedure 56. For reasons more fully explained below, the motion is denied.

 BACKGROUND

 The Amalgamated Retail Insurance Fund ("the Fund") is a multi-employer trust fund created pursuant to an Agreement and Declaration of Trust. The purpose of the Fund is to provide benefits to employees of employers obligated by collective bargaining agreements with locals of the Amalgamated Clothing and Textile Workers' Union to make contributions to the Fund. (Levitt Aff. P 3.) This fund is an "employee welfare benefit plan" as defined by ERISA, 29 U.S.C. § 1001, et seq. (Def. Local Rule 3(g) Statement P 1.) The Fund employed Amalgamated Fund Administrators ("AFA") as a third-party administrator to process claims; AFA purchases certain services, but not insurance, from the Amalgamated Life Insurance Company. (Levitt Aff. P 5.) The Restated Agreement and Declaration of Trust governing the Fund, as of March 1986 ("the Plan"), provides in Article VII, Section 10, that the Fund Trustees

 
shall have the full and complete power and authority to determine all matters arising in the administration, interpretation and application of the Fund and the Plans administered by the Trustees, to determine all questions of coverage and eligibility, methods of providing or arranging for benefits, to determine and decide all questions concerning the nature, amount and duration of benefits . . .

 Plaintiff Mirto is a chiropractor with an office in New York City. (Pl. Local Rule 3(g) Statement P 1.) On May 18, 1992, Kevin Daley, an insured of defendant, presented himself at plaintiff's office. (Hogan Aff. at 1.) The documents and records submitted in this case make clear that numerous treatments and exams were performed on Daley by Dr. Mirto, (Levitt Aff., Ex. A-E), but this dispute revolves around payment -- claimed by plaintiff to be due -- for only two tests: a nerve conduction test performed on May 20, 1992, and a Somatosensory Evoked Potential Test, performed on June 10, 1992. (Hogan Aff. at 2.)

 Mirto received an assignment of claims from Daley for the entirety of the treatment and diagnostic exams, and then submitted claims to the defendant for payment of the services provided and tests performed. (Levitt Aff., Ex. D at 2 (Letter from Hogan to Amalgamated of 2/16/94, at 2).) Defendant then requested by letter dated August 24, 1992, all treatment records relating to various claims, including the claims at issue. (Levitt Aff., Ex. D at 18 (Letter from Greenberg to Mirto of 8/24/92).) According to plaintiff, all the relevant records were submitted on August 28, 1992, except for copies of x-rays. *fn1" (Levitt Aff., Ex. D at 2 (Letter from Hogan to Amalgamated of 2/16/94, at 2); Levitt Aff., Ex. C. at 7 (Letter from Mirto to Greenberg of 9/21/93, at 2).) Nevertheless, Dr. Mirto submitted a "summary of x-ray findings along with treatment/prognosis." (Levitt Aff., Ex. D at 1 (Letter from Hogan to Amalgamated of 2/16/94, at 1).) An identical request for documentation was made to plaintiff in October of 1992, and the same records which were submitted on August 28, 1992, were again sent on October 16, 1992. (Levitt Aff., Ex. D at 1 (Letter from Hogan to Amalgamated of 2/16/94, at 1).)

 Finally, on June 22, 1993, after further contact between plaintiff and defendant, Dr. Mirto mailed copies *fn2" of Daley's xrays to Amalgamated. (Levitt Aff., Ex. D at 2 (Letter from Hogan to Amalgamated of 2/16/94, at 2); Levitt Aff., Ex. C. at 7 (Letter from Mirto to Greenberg of 9/21/93, at 2).)

  Plaintiff claims to have sent to defendant original assignments from Daley, along with the original claim forms on these as well as concurrent claims, *fn3" between May and July 1992. (Levitt Aff., Ex. D at 2 (Letter from Hogan to Amalgamated of 2/16/94, at 2).) Despite these assignments forwarded to the defendant and inquiries made to the defendant on the subject by Dr. Mirto on May 14, *fn4" August 2, *fn5" August 23, *fn6" and August 26, *fn7" 1993, defendant may have paid Daley, the insured, directly on the diagnostic tests at issue in this case, as well as on several other concurrent claims for which assignments had been provided. (Levitt Aff., Ex. D at 2-3 (Letter from Hogan to Amalgamated of 2/16/94, at 2-3); Levitt Aff., Ex. D. at 14 (Letter from Member Service Rep. to Mirto of 8/30/93); Levitt Aff., Ex. D. at 16 (Letter from Mirto to Atkins of 8/26/93).) If so, this would explain the defendant's reluctance to pay plaintiff on the same claim, though not excuse it. Dr. Mirto continued to demand payment from the defendant, (Levitt Aff., Ex. D at 2-3 (Letter from Hogan to Amalgamated of 2/16/94, at 2-3)), and on August 5, 1993, for the first time, defendant submitted this claim to an outside claims examiner, Dr. McLaughlin, for evaluation as to "appropriateness of care." (Levitt Aff., Ex. A (Report of Paul McLaughlin: "Referred: 08/05/93").)

 Based on the undated report of Dr. McLaughlin, defendant denied payment to plaintiff in a letter dated August 27, 1993, stating that "our" medical review unit "has determined that the services were not medically necessary." (Levitt Aff., Ex. C. at 5 (Letter from Greenberg to Mirto of 8/27/93).) On September 23, 1993, defendant responded to a letter from plaintiff by again requesting copies of all medical records for the patient for the purposes of a "routine post payment review". (Levitt Aff., Ex. D. at 5 (Letter from Crescenzo to Park Avenue Diagnostic of 9/23/93).) Plaintiff responded by informing defendant that all records had previously been sent. (Levitt Aff., Ex. D. at 5 (notation on face of Letter from Crescenzo to Park Avenue Diagnostic of 9/23/93).)

 On or about September 29, 1993, defendant submitted plaintiff's records to another "outside" consultant for "appeals review," more specifically, for a "review of medical necessity for all chiropractic services submitted, including Xrays [sic] and diagnostic studies performed." (Levitt Aff. P 13; Levitt Aff., Ex. B at 1 (Peer Review Analysis Memorandum from Richard E. Vincent of 10/13/93).) Dr. Richard E. Vincent, D.C., F.I.C.C., responded with a report dated October 13, 1993, denying the appeal. (Levitt Aff., Ex. B at 1-2 (Peer Review Analysis Memorandum from Richard E. Vincent of 10/13/93).)

 On September 17, 1993, plaintiff initiated this action in the Civil Court of the City of New York, Small Claims Part, with service on the defendant on September 29, 1993. On October 20, 1993, the defendant removed the action to this court.

 On January 31, 1994, plaintiff was notified that defendant's appeals committee would consider the appeal at its next meeting, and provided plaintiff with an "Appeal Summary" that would be provided to the committee along with various records for its consideration. (Levitt Aff., Ex. C at 1.) Plaintiff responded through his attorney by letter dated February 16, 1994, detailing his version of the facts and criticizing the two reviews of his claim. (Levitt ...


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