November 30, 2011

Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52199(U))

https://www.beynensonlaw.com/case-law/megacure-acupuncture-p-c-v-clarendon-natl-ins-co-2011-ny-slip-op52199u/

Court: Appellate Term, Second Department
Decided: November 30, 2011
Citation: 2011 NY Slip Op 52199(U) · 33 Misc 3d 141(A)
Posture: Summary judgment
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Fee schedule Provider's prima facie case Timeliness and preclusion
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141(A), 2011 NY Slip Op 52199(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 failed to prove that the acupuncture charges exceeded the fee schedule, and the provider failed to establish entitlement to judgment. The insurer proved timely mailing of verification requests and denials but omitted the applicable fee schedule. Although judicial notice was permissible, it supplied neither sufficient information nor notice to the provider under CPLR 4511 (b), so the court declined to take notice. It also supplied insufficient evidence to dismiss the initial-visit claim. The provider failed to establish an untimely, conclusory, vague, or otherwise defective denial. The Appellate Term, Second Department, modified the order to deny the provider's cross motion and affirmed denial of the insurer's motion, leaving both sides without summary judgment.

Reported in New York Official Reports at Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52199(U))

[*1]

Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co.

2011 NY Slip Op 52199(U) [33 Misc 3d 141(A)]

Decided on November 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 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
2010-1206 K C.

Megacure Acupuncture, P.C. as Assignee of JESSE RUTLEDGE, Respondent,
against
Clarendon National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret Pui Yee Chan, J.), entered October 23, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; 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 denying its motion for summary judgment dismissing
the complaint and granting plaintiff’s cross motion for summary judgment, arguing that it had properly reimbursed plaintiff the amount to which plaintiff was entitled for the acupuncture services it had rendered, by using the workers’ compensation medical fee schedule.

In support of its motion, defendant submitted an affidavit by an employee of its claims division, which was sufficient to establish that the verification requests and denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), but which was insufficient to establish defendant’s contention that the amounts charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule. The applicable portion of the fee schedule was not [*2]annexed to defendant’s papers. While courts are permitted to take judicial notice of the workers’ compensation fee schedule (see LVOV Acupuncture, P.C. v Geico Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721 [U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]; see also Kingsbrook Jewish Med. Ctr.v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), a party seeking to have the court take judicial notice should provide the court with sufficient information to permit the court to take judicial notice and should advise the adverse party of the request for judicial notice (CPLR 4511 [b]). Inasmuch as that was not done here, we decline to take judicial notice of the workers’ compensation fee schedule in this case. Accordingly, with respect to the acupuncture services rendered by its licensed acupuncturist for the acupuncture sessions from August 7, 2006 through September 21, 2006, the Civil Court properly denied defendant’s motion for summary judgment. Likewise, the Civil Court properly denied defendant’s motion for summary judgment to the extent that it sought dismissal of plaintiff’s claim for the initial acupuncture visit of August 4, 2006, as defendant did not proffer sufficient evidence to warrant the dismissal thereof (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Plaintiff, however, was not entitled to summary judgment on its cross motion, as it failed to establish that there was an untimely denial or that the denial was conclusory, vague or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78AD3d 1168 [2010]). Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

Legal questions (3)

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider was not entitled to summary judgment because it failed to establish that the denial was untimely or conclusory, vague or otherwise defective.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proving a fee schedule defense

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

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial

Held the insurer failed to establish that the acupuncture charges exceeded the fee schedule because it did not annex the schedule or give the notice needed for judicial notice under CPLR 4511.

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, 85 (this one included) are in the same category. 3 decisions in other departments that cite or are cited by this one are on the full map.

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 claims employee's affidavit sufficed to establish that the verification requests and denials were timely mailed under the insurer's standard office practices and procedures.

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. One decision in other departments that cites or is cited by this one is on the full map.

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.
LVOV Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 51721(U))The insurer established full fee-schedule payment for acupuncture codes 97810 and 97811 but offered no basis to dismiss the initial-visit claim.
Natural Acupuncture Health, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 50040(U))The insurer proved a fee-schedule defense to one provider's claims but failed to establish timely denial of another provider's claim.
Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co. (2009 NY Slip Op 00351)Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident.
Raz Acupuncture, P.C. v AIG Indem. Ins. Co. (2010 NY Slip Op 51177(U)) FollowedAn insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist.

Cited by

A label shows how the later decision treated this one.

MIA Acupuncture, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 21480) FollowedThe insurer proved lack of medical necessity for certain acupuncture services but failed to establish late submission or excessive fees.
Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2015 NY Slip Op 51849(U)) FollowedThe insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim.
Perfect Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 50399(U)) FollowedThe insurer's cross motion for summary judgment on the unpaid acupuncture claims was denied for insufficient fee schedule proof.
Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. (2016 NY Slip Op 03485)The insurers failed to establish timely and proper mailing of the EUO letters through a conclusory description of office procedures.
Demas v State Farm Fire & Cas. Co. (2022 NY Slip Op 50250(U))The insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule.
Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061)MVAIC established proper payment at chiropractic acupuncture rates, and the provider failed to show that physician rates should apply.
Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U))The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.
Advanced Recovery Equip. & Supplies v Travelers Ins. Co. (2022 NY Slip Op 50690(U))The insurer failed to establish its fee-schedule defense because its analyst's affidavit did not establish expert qualifications.

Similar decisions

Megacure Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51291(U))The insurer proved full fee-schedule payment for earlier acupuncture services and lack of medical necessity for later services.
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.
Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51772(U))The insurer established timely denials, full fee-schedule payment for certain acupuncture services and lack of necessity for the remaining services.
East Coast Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51229(U))The insurer established IME nonappearance but failed to show tolling of the denial period for its fee-schedule reductions.
Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U))The insurer proved timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims.