December 23, 2011

WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))

https://www.beynensonlaw.com/case-law/wjj-acupuncture-p-c-v-geico-ins-co-2011-ny-slip-op-52377u/

Court: Appellate Term, Second Department
Decided: December 23, 2011
Citation: 2011 NY Slip Op 52377(U) · 34 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

WJJ Acupuncture, P.C. v Geico Ins. Co., 34 Misc 3d 134(A), 2011 NY Slip Op 52377(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 except for the initial visit claim. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing claims billed under CPT code 97813, while preserving the provider's summary judgment on the initial visit billed under CPT code 99204. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer demonstrated that its payments for the licensed acupuncturist's services complied with the workers' compensation fee schedule for chiropractors. The insurer offered no evidence or argument warranting dismissal of the initial visit claim and did not challenge the provider's prima facie showing on appeal.

Reported in New York Official Reports at WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))

[*1]

WJJ Acupuncture, P.C. v Geico Ins. Co.

2011 NY Slip Op 52377(U) [34 Misc 3d 134(A)]

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-2165 K C.

WJJ Acupuncture, P.C. as Assignee of MICHAEL MAZUR, Respondent,
against
GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 6, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which was sufficient to establish that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta [*2]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT code 97813 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, 11th & 13th Jud Dists 2009]). Since, with the exception of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, defendant fully paid the amount to which plaintiff was entitled for acupuncture services rendered by plaintiff’s licensed acupuncturist from October 26, 2005 through January 19, 2006, so much of defendant’s cross motion for summary judgment seeking to dismiss the complaint as to these claims is granted.

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, billed under CPT code 99204 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant raised no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not reach the propriety of the Civil Court’s determination with respect thereto. Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment as to this claim, and denied the branch of defendant’s cross motion seeking summary judgment dismissing this claim.

In light of the foregoing, the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

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: Excess shown for some charges, not for others

Held the insurer fully paid CPT 97813 acupuncture at the chiropractor rate, dismissing those claims, but offered no evidence that the initial visit charge under 99204 exceeded the schedule, leaving the provider's award on it.

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

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.

Proof of mailing

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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 claims division employee's affidavit sufficient to establish timely denial of the unpaid portion on the fee schedule ground, a mailing finding supported by standard-practice authority.

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

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) Contrasted (cf., but see)The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Similar decisions

Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
MIA Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51731(U))The insurer proved full payment of fee schedule claims and raised a medical necessity issue on the remaining acupuncture claims.
Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U))The insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance.
LVOV Acupuncture, P.C. v GEICO Ins. Co. (2011 NY Slip Op 51845(U))The workers' compensation fee schedule incorporated into no-fault regulations may be judicially noticed under CPLR 4511 (b).
Health Needles Acupuncture, P.C. v GEICO Ins. Co. (2014 NY Slip Op 51864(U))The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule for chiropractors.