December 8, 2017

AVM Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51708(U))

https://www.beynensonlaw.com/case-law/avm-chiropractic-p-c-v-american-tr-ins-co-2017-ny-slip-op51708u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51708(U) · 58 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

AVM Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 126(A), 2017 NY Slip Op 51708(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 proved full fee schedule payment of three claims but failed to justify Ground Rule reductions of seven others. The provider challenged summary judgment dismissing the first through eighth causes of action and findings reducing the ninth and tenth claims under an eight-unit fee schedule defense. The insurer adequately proved full payment of the first, fourth, and fifth claims under the workers' compensation fee schedule. It did not demonstrate proper Ground Rule reductions for the second, third, and sixth through tenth claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of the second, third, and sixth through eighth causes and vacate the CPLR 3212 (g) findings on the ninth and tenth, while affirming the three dismissals.

Reported in New York Official Reports at AVM Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51708(U))

[*1]

AVM Chiropractic, P.C. v American Tr. Ins. Co.

2017 NY Slip Op 51708(U) [58 Misc 3d 126(A)]

Decided on December 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 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
2014-1527 Q C

AVM Chiropractic, P.C., as Assignee of Fuller Tara, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through eighth causes of action and, upon denying the branches of defendant’s motion seeking summary judgment dismissing the ninth and tenth causes of action, found, in effect pursuant to CPLR 3212 (g), that defendant had “established its 8-unit [Ground Rule] (fee schedule) defense,” thereby “reduc[ing]” the claims underlying the ninth and tenth causes of action “to reflect the proper rate.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second, third, and sixth through eighth causes of action are denied, and the findings, in effect pursuant to CPLR 3212 (g), on the ninth and tenth causes of action are vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s [*2]motion seeking summary judgment dismissing the first through eighth causes of action and, upon denying the branches of defendant’s motion seeking summary judgment dismissing the ninth and tenth causes of action, found, in effect pursuant to CPLR 3212 (g), that defendant had “established its 8-unit [Ground Rule] (fee schedule) defense” and stated that “those portions [of the complaint] are reduced to reflect the proper rate.”

There is no merit to plaintiff’s argument regarding the adequacy of the proof submitted by defendant to establish that defendant had fully paid plaintiff for the claims underlying the first, fourth and fifth causes of action in accordance with the workers’ compensation fee schedule. However, as to the claims underlying the second, third, and sixth through tenth causes of action, plaintiff correctly argues that defendant did not demonstrate that it had appropriately reduced the claims in accordance with the workers’ compensation Ground Rules (see 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second, third, and sixth through eighth causes of action are denied, and the findings, in effect pursuant to CPLR 3212 (g), on the ninth and tenth causes of action are vacated.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

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: Excess shown for some charges, not for others

Held the insurer proved full payment under the fee schedule for three claims, but for the remaining claims did not show it had properly reduced them under the workers' compensation Ground Rules, so those branches were denied and the CPLR 3212 (g) findings vacated.

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, 24 (this one included) are in the same category.

Cited in this decision

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

Sama Physical Therapy, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51359(U)) FollowedThe insurer established proper recoding of physical therapy services but failed to justify Ground Rule 11 reductions on three claims.

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.
Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))The insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims.
Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U))The insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51455(U))The insurer failed to establish timely denials preserving its fee-schedule defense to three claims.