December 22, 2017

Oleg’s Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51863(U))

https://www.beynensonlaw.com/case-law/olegs-acupuncture-p-c-v-geico-gen-ins-co-2017-ny-slip-op51863u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51863(U) · 58 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Oleg's Acupuncture, P.C. v GEICO Gen. Ins. Co., 58 Misc 3d 140(A), 2017 NY Slip Op 51863(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 established full payment under the chiropractic acupuncture fee schedule for services billed under CPT codes 97813 and 97814. Its proof raised a presumption of timely mailing of the relevant denials and demonstrated payment in accordance with the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. The provider failed to raise a triable issue in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's cross motion for summary judgment dismissing the claims under those two codes.

Reported in New York Official Reports at Oleg’s Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51863(U))

[*1]

Oleg’s Acupuncture, P.C. v GEICO Gen. Ins. Co.

2017 NY Slip Op 51863(U) [58 Misc 3d 140(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-432 K C

Oleg’s Acupuncture, P.C., as Assignee of Bell James, Respondent,
against
GEICO General Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 9, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much an order of the Civil Court as denied the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 on the ground that defendant had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule.

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. [*2]Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97813 and 97814 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:

Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

Legal questions (2)

Questions 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 insurer fully paid CPT 97813 and 97814 services under the chiropractor acupuncture fee schedule and the provider raised no triable issue, so those claims were dismissed.

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

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 146 (this one included) are in the same category.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer's proof sufficient to raise a presumption that the denial of claim forms had been timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.

Similar decisions

Acupuncture Now, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51643(U))The insurer established full payment of CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture.
Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51803(U))The insurer established full fee schedule payment for the appealed acupuncture services and untimely submission of two other claims.
Z. M. S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51891(U))A fee-schedule defense is not subject to preclusion for services rendered after April 1, 2013, under 11 NYCRR 65-3.8 (g).
BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2020 NY Slip Op 51337(U))The insurer established full payment of acupuncture claims under the workers' compensation fee schedule for services performed by chiropractors.