October 12, 2011

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51856(U))

https://www.beynensonlaw.com/case-law/ava-acupuncture-p-c-v-geico-gen-ins-co-2011-ny-slip-op51856u/

Court: Appellate Term, Second Department
Decided: October 12, 2011
Citation: 2011 NY Slip Op 51856(U) · 33 Misc 3d 129(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

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 129(A), 2011 NY Slip Op 51856(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 applicable chiropractor acupuncture fee schedule and timely mailing of its denials. A claims employee's affidavit established standard office mailing practices, contrary to the provider's challenge. It also demonstrated that the insurer properly applied the workers' compensation fee schedule for acupuncture services performed by chiropractors, following Great Wall Acupuncture. The provider did not dispute that the insurer paid the full permissible amount before suit. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The provider's remaining arguments were not properly before the court because they were raised for the first time on appeal.

Reported in New York Official Reports at AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51856(U))

[*1]

AVA Acupuncture, P.C. v GEICO Gen. Ins. o.

2011 NY Slip Op 51856(U) [33 Misc 3d 129(A)]

Decided on October 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 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
2010-880 K C.

AVA Acupuncture, P.C. as Assignee of EGBUNIKE CHINWE and STEPHEN OSAGIEDE, Respondent,
against
GEICO General Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 9, 2007. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit of an employee of its claims division which, contrary to plaintiff’s contention, sufficiently established that the claim denial 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]). The affidavit further established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services rendered (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant, prior to the commencement of this action, paid plaintiff the full amount to which plaintiff was entitled, defendant’s motion for summary judgment dismissing the complaint should have been granted. Plaintiff’s remaining arguments [*2]are not properly before this court since they are raised for the first time on appeal.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 12, 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

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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 affidavit established that the insurer properly used the chiropractor acupuncture fee schedule and had paid the full amount due before suit, so the complaint was dismissed.

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.

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)

Rejected the provider's contention and held the claims employee's affidavit established that the denial forms 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 1,400 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.

Similar decisions

Gentle Care Acupuncture, P.C. v GEICO (2011 NY Slip Op 51121(U))An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse a licensed acupuncturist.
Ying E. Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51805(U))The insurer established timely denials and proper use of the chiropractic acupuncture fee schedule, defeating the provider's summary judgment.
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.
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.
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.