October 1, 2010

Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U))

https://www.beynensonlaw.com/case-law/point-of-health-acupuncture-p-c-v-geico-ins-co-2010-ny-slip-op51724u/

Court
Appellate Term, Second Department
Decided
October 1, 2010
Citation
2010 NY Slip Op 51724(U) · 29 Misc 3d 127(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Fee schedule Timeliness and preclusion
Legal questions
Proof of mailing · Proving a fee schedule defense (see the maps)
Cite as
Point of Health Acupuncture, P.C. v GEICO Ins. Co., 29 Misc 3d 127(A), 2010 NY Slip Op 51724(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims. The provider sought unpaid balances on five acupuncture claim forms, but the insurer limited its appeal to three. Its claims employee's affidavit established timely mailing through standard office practices and procedures, contrary to the Civil Court's conclusion. The insurer properly applied the workers' compensation fee schedule for acupuncture performed by chiropractors to services rendered by a licensed acupuncturist and paid the full allowable amounts. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied provider summary judgment on the unpaid portions of those three claims, and granted the corresponding branches of the insurer's cross motion.

Reported in New York Official Reports at Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U))

[*1]
Point of Health Acupuncture, P.C. v GEICO Ins. Co.
2010 NY Slip Op 51724(U) [29 Misc 3d 127(A)]
Decided on October 1, 2010
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.
Decided on October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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


PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-907 K C.
Point of Health Acupuncture, P.C. as Assignee of Michael Rusynyak, Respondent,

against

GEICO Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 11, 2009. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment as to the unpaid portions of claim forms seeking the sums of $1,820, $1,300, and $780, respectively, and denied defendant’s cross motion for summary judgment as to the unpaid portions of those claim forms.

ORDERED that the order, insofar as appealed from, is reversed without costs, so much of plaintiff’s motion as sought summary judgment on the unpaid portions of claim forms seeking the sums of $1,820, $1,300, and $780, respectively, is denied, and so much of defendant’s cross motion as sought summary judgment on the unpaid portions of those claim forms is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to recover for the unpaid portions of five claim forms for acupuncture services. Defendant had paid portions of each claim, but had denied the remainder of each claim on the ground that plaintiff sought to recover fees in excess of what defendant had determined to be the proper rate of reimbursement for acupuncture services performed by chiropractors. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, finding that defendant had failed to specify the dates on which its denials were mailed. On appeal, defendant limits its argument to the unpaid portions of three claim forms, which sought the sums of $1,820, $1,300 and $780, respectively.

Contrary to the conclusion of the Civil Court, the affidavit of defendant’s claims division employee was sufficient to establish that the relevant denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s [*2]Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins.,17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant properly demonstrated that it had used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by plaintiff’s licensed acupuncturist (Amercure Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50068[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, since defendant fully paid plaintiff the amount to which plaintiff was entitled with respect to the claim forms seeking the sums of $1,820, $1,300, and $780, respectively, plaintiff’s motion for summary judgment with regard to those unpaid portions should have been denied and defendant’s cross motion with respect thereto should have been granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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