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Civil Court of the City of New York, Kings County, February 11, 2004
APPEARANCES OF COUNSEL
Israel, Israel & Purdy, LLP (Veronica R. Irwin of counsel), for plaintiff. Moore & Associates (Leslie C. Ruthledge of counsel), for defendant.
{**3 Misc 3d at 608} OPINION OF THE COURT
Jack M. Battaglia, J.
{**3 Misc 3d at 609}A no-fault insurer defending a denial of first-party benefits on the ground that the billed-for services were not "medically necessary" must at least show that the services were inconsistent with generally accepted medical/professional practice. The opinion of the insurer's expert, standing alone, is insufficient to carry the insurer's burden of proving that the services were not "medically necessary."
CityWide Social Work & Psychological Services, P.L.L.C. billed Travelers Indemnity Company a total of $1,181.63 for psychiatric/psychological services rendered by "Dr. Seidman Ph.D." to CityWide's assignor, Tremayne Brow. (Nowhere in any of the claim documents or reports does a given name for the psychologist appear.) The bill contains separate charges for "Psychiatric Evaluation of Records and other accumulated data for medical diagnostic purposes"; "Psychiatric Diagnostic interview examination"; five hours of "Psychological testing (includes Psychodiagnostic assessment with interpretation and report . . .)"; "Explanation and interpretation of results to primary physician"; and "Psychotherapy." More than half the total charges ($696.50) were for the five hours of testing and related services. Travelers denied the claim based upon a "NHR analysis" performed by Andrew M. Elmore, Ph.D., in which he concluded that "available medical records completely fail to establish medical necessity" for the services covered by the bill. This action resulted.
At the January 16, 2004 trial, the parties stipulated that CityWide submitted proper proof of claim and that Travelers made timely denial. The only issue for trial was the medical necessity of the billed-for services, an issue on which Travelers bore the burden of proof. (See Elm Med., P.C. v American Home Assur. Co., 2003 NY Slip Op 51357[U], *8-9 [Civ Ct, Kings County].) Dr. Elmore testified on behalf of Travelers, and Dr. Bruce Baumgarten, also a [*2]psychologist, testified for CityWide. Dr. Baumgarten had no professional relationship to the patient, Tremayne Brow. Dr. Seidman, the psychologist who rendered the services, did not testify, nor did "Dr. Kostin," the otherwise unidentified "referring and treating specialist" according to Dr. Seidman's reports.
The referral to CityWide was apparently based upon a "Self-Referral Consent and Authorization Form for Examination of Patient's Need for Psychological Testing/Psychotherapy," completed by Mr. Brow on January 29, 2001. (The subject accident occurred on December 16, 2000.) The form lists 16 "{**3 Misc 3d at 610}problems or condition[s]," of which 12 were circled by Mr. Brow to indicate that they applied to him. The circled items include increased nervousness, nightmares, "sad mood," flashbacks, irritability, and "changes in level of functioning at work/at school."
After a review of records and an interview with Mr. Brow, Dr. Seidman administered the Beck Anxiety Inventory, Beck Depression Inventory, Beck Hopelessness Scale, a "PD-3" (pain patient profile) and PDS (posttraumatic stress disorder scale). Dr. Seidman prepared a "[m]edical necessity letter regarding psychological evaluation" (dated Jan. 29, 2001), a "Narrative Report" (dated Mar. 7, 2001), and a "Psychological Evaluation" (dated Mar. 15, 2001). He diagnosed Mr. Brow with "Adjustment Disorder with Mixed Anxiety and Depressed Mood," and treated Mr. Brow with at least one hour of psychotherapy. Dr. Elmore reviewed Dr. Seidman's reports in performing his analysis, and prepared a written report dated April 16, 2001.
Dr. Elmore testified with apparent strong conviction that none of the billed-for services were medically necessary, finding no evidence that Mr. Brow required psychological care. In Dr. Elmore's view, the self-referral consent and authorization form did not warrant referral for psychological evaluation, in that the conditions noted are commonly experienced for some months after a motor vehicle accident. He considered the three Beck instruments to be inappropriately used as diagnostic tests, rather than for research purposes or in long-term clinical treatment after a diagnosis has been made. And he considered any information derived from those instruments to be of no use for treatment purposes. As stated in his report, and repeated in various forms and contexts during his testimony at trial, Dr. Elmore saw no "psychological complaints of a significant functionally disabling degree of severity" to require any of the services rendered.
Dr. Baumgarten testified to the contrary that the self-referral consent and authorization form would warrant psychological evaluation, considering information as to functional consequences "useful" but "not essential." In his view, the Beck instruments are "clearly diagnostic tests" that are frequently used before a diagnosis has been made, for example, to validate information provided by the patient during the relatively short interview or to "rule in or rule out" a diagnosis. He considered the information derived from the instruments to be helpful in making treatment decisions. Expressing his general view that earlier {**3 Misc 3d at 611}treatment is better than later treatment, even without manifest functional consequences, he concluded from Dr. [*3]Seidman's reports that Mr. Brow would benefit from psychological treatment.
The governing statute and regulations provide no standard or paradigm that allows the court to choose between the conflicting concepts of "medical necessity" offered by the qualified experts who testified at trial. In the absence of some standard or paradigm against which the court may assess the respective opinions of these experts, their conflicting opinions appear to do "no more than demonstrate a difference in professional medical judgment." (See Strassberg v Connecticut Gen. Life Ins. Co., 182 AD2d 1055, 1057 [3d Dept 1992].)
There is no question that psychological services, including the administration of psychological tests, are compensable under the no-fault scheme. (See Valley Psychological v Liberty Mut. Ins. Co., 195 Misc 2d 540 [Albany City Ct 2002]; Yellin v Liberty Mut. Ins. Co., 192 Misc 2d 285 [Civ Ct, Queens County 2002]; Rombom v Interboro Mut. Indem. Ins. Co., 170 Misc 2d 846 [Civ Ct, Queens County 1996].) In particular, the Beck instruments are administered to "[assess] the psychological impact of [an] accident." (DeJesus v Rafael, 2003 WL 21305358, *4, 2003 US Dist LEXIS 9488, *12 [SD NY, June 5, 2003].)
Indeed, psychological injury can qualify as "serious injury" within the meaning of Insurance Law

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