November 6, 2020

LVOV Acupuncture, P.C. v Nationwide Ins. Co. (2020 NY Slip Op 51339(U))

https://www.beynensonlaw.com/case-law/lvov-acupuncture-p-c-v-nationwide-ins-co-2020-ny-slip-op51339u/

Court: Appellate Term, Second Department
Decided: November 6, 2020
Citation: 2020 NY Slip Op 51339(U) · 69 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

LVOV Acupuncture, P.C. v Nationwide Ins. Co., 69 Misc 3d 140(A), 2020 NY Slip Op 51339(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's certified medical coder's affidavit established proper use of the workers' compensation fee schedule to determine reimbursement. The provider appealed summary judgment dismissing its assigned first-party no-fault benefits action on the ground that the insurer had fully paid for the services. The Appellate Term, Second Department, rejected the provider's challenge to the coder's affidavit, found that the provider had not rebutted the insurer's showing, and rejected its remaining contention as lacking merit. It affirmed the order granting the insurer's motion.

Reported in New York Official Reports at LVOV Acupuncture, P.C. v Nationwide Ins. Co. (2020 NY Slip Op 51339(U))

[*1]

LVOV Acupuncture, P.C. v Nationwide Ins. Co.

2020 NY Slip Op 51339(U) [69 Misc 3d 140(A)]

Decided on November 6, 2020

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 6, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2277 K C

LVOV Acupuncture, P.C., as Assignee of Ozhan Tastaban, Appellant,
against
Nationwide Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Office of Kevin J. Philbin (Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 16, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had fully paid plaintiff for the services at issue.

Contrary to plaintiff’s contention, the affidavit executed by defendant’s certified medical coder, submitted in support of defendant’s motion, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services in question (see Quality Comprehensive Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 65 Misc 3d 143[A], 2019 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff failed to rebut defendant’s showing, and plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule

Held the certified medical coder's affidavit established the insurer properly used the workers' compensation fee schedule to compute what the provider was owed, and the provider failed to rebut it.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Quality Comprehensive Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 51734(U)) FollowedThe insurer proved a fee-schedule limit of $425.88 per claim but failed to establish lack of medical necessity.
Sama Physical Therapy, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51359(U))The insurer established proper recoding of physical therapy services but failed to justify Ground Rule 11 reductions on three claims.

Similar decisions

LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51176(U))The insurer's appeal from an order directing a traverse hearing on its dismissal motion was dismissed.
LMS Acupuncture, P.C. v Nationwide Ins. (2016 NY Slip Op 51542(U))The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal.
Lvov Acupuncture, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51809(U))The insurer's summary judgment motion dismissing the provider's claims for failure to appear at scheduled EUOs was granted and upheld.
Natural Therapy Acupuncture, P.C. v Nationwide Ins. (2017 NY Slip Op 50943(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.