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July 27, 2010

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co. (2010 NY Slip Op 20308)

https://www.beynensonlaw.com/case-law/john-giugliano-dc-p-c-v-merchants-mut-ins-co-2010-ny-slip-op-20308/

Court
Civil Court of the City of New York, Kings County
Judge
Fisher, J.
Decided
July 27, 2010
Citation
2010 NY Slip Op 20308 · 29 Misc 3d 367
Posture
Trial
Outcome
Provider prevailed
Later treatment
Declined to follow in 1 later decision (see Cited by)
Issues
Fee schedule
Legal questions
Proving a fee schedule defense (see the maps)
Cite as
John Giugliano, DC, P.C. v Merchants Mut. Ins. Co., 29 Misc 3d 367 (Civ Ct, Kings County 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 chiropractor established that procedures absent from the chiropractic fee schedule were properly billed under surgical CPT codes. After trial, the Civil Court, Kings County, entered judgment for the provider under the New York Workers' Compensation Medical Fee Schedule. The claims involved spinal manipulation under anesthesia and closed treatment of a mandibular fracture with manipulation. The provider rebutted the insurer's testimony that a chiropractor could not use the surgical schedule, explaining that the procedures were not listed in the chiropractic schedule. For an unscheduled reimbursable service, the provider may establish a fee consistent with scheduled comparable procedures, subject to insurer review. The court also allowed co-surgeon billing because the insurer offered no contrary proof concerning that classification.

Reported in New York Official Reports at John Giugliano, DC, P.C. v Merchants Mut. Ins. Co. (2010 NY Slip Op 20308)

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co.
2010 NY Slip Op 20308 [29 Misc 3d 367]
July 27, 2010
Fisher, J.
Civil Court Of The City Of New York, Kings County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 3, 2010

[*1]

John Giugliano, DC, P.C., as Assignee of Laura Hebenstreit, Plaintiff,
v
Merchants Mutual Ins. Co., Defendant.

Civil Court of the City of New York, Kings County, July 27, 2010

APPEARANCES OF COUNSEL

Israel, Israel & Purdy LLP, Great Neck (Josephine Lupis-Usinger of counsel), for plaintiff. Peknik Peknik & Schaefer LLC, Long Beach (Matthew Bruzzese of counsel), for defendant.

{**29 Misc 3d at 367} OPINION OF THE COURT

Pamela L. Fisher, J.

Plaintiff, John Giugliano, DC, P.C., assignee of Laura Hebenstreit,{**29 Misc 3d at 368} instituted this action to recover first party no-fault benefits from defendant Merchants Mutual Ins. Co. A trial was held before this court on June 30, 2010. After considering and evaluating the trial evidence and upon weighing and assessing the credibility of the witnesses, the court makes the following findings of fact and conclusions of law.

At trial, the parties stipulated that plaintiff established its prima facie case, that defendant established timely denials, and that the bills, denials, and underlying medical records would be admitted into evidence. The sole issue remaining for trial was whether plaintiff was entitled to recover for the claims submitted based on the New York Workers’ Compensation Medical Fee Schedule (hereafter “Fee Schedule”).

As stated in Roberts Physical Therapy, P.C. v State Farm Mut. Auto Ins. Co. (14 Misc 3d 1230[A], 2006 NY Slip Op 52565[U], *2 [Civ Ct, Kings County 2006]), in order

“[t]o contain the cost of providing medical services to patients treated under New York’s No-Fault law, the state legislature set limits on the fees health care providers may charge patients who sustain injuries . . . by incorporating into the no-fault scheme the fee [*2]schedules established by the Worker’s Compensation Board for industrial accidents.”

The Fee Schedule is divided into seven sections: Introduction and General Guidelines, Evaluation and Management, Anesthesia, Surgery, Radiology, Pathology and Laboratory, Medicine, and Physical Medicine. The Fee Schedule also contains a chiropractic fee schedule section, and a psychology fee schedule section. Each of these sections lists a variety of medical procedures and assigns to each procedure a number known as a current procedural terminology registry code (hereinafter CPT code). In the instant matter, plaintiff, a licensed chiropractor, submitted bills indicating that manipulation of spine under anesthesia (CPT code 22505) and closed treatment of mandibular fracture with manipulation (CPT code 21451) were performed on the assignor. The CPT codes which plaintiff utilized in billing are listed in the surgery section of the Fee Schedule. Dr. Macki was identified as the primary surgeon and Dr. Giugliano was identified as the co-surgeon for the procedures.

Defendant called Laurene Skeffington, a compliance analyst, to testify regarding whether plaintiff properly billed for the services pursuant to the Fee Schedule. Ms. Skeffington testified that it was not appropriate for a chiropractor to utilize the surgical fee schedule even when the procedures performed are not{**29 Misc 3d at 369} listed under the chiropractic fee schedule. She also testified that it was not appropriate to bill CPT code 22505 twice regardless of the fact that both the thoracic and cervical spine were treated.

Plaintiff called Dr. John Giugliano as a rebuttal witness. Dr. Giugliano testified that as the procedures performed, manipulation of spine under anesthesia and closed treatment of mandibular fracture with manipulation, are not listed under the chiropractic fee schedule it was appropriate for them to be billed utilizing the CPT codes listed in the surgery section of the Fee Schedule. Dr. Giugliano stated that it was permissible for CPT code 22505 to be billed twice as two separate areas were treated, namely the thoracic and cervical spine. Dr. Giugliano testified that the procedures required the participation of two doctors and that he served as co-surgeon during the procedures.

It should be noted that the surgery section of the Fee Schedule denotes different percentages of payment based on whether a participating surgeon is acting as a “Surgical Assistant” or a “Co-Surgeon.” A surgical assistant bills at 16%, while co-surgeons are directed to apportion billing in relation to the responsibility and work done. (See New York Workers’ Compensation Fee Schedule, Surgery, at 4.) Defendant’s witness did not offer testimony regarding whether plaintiff should have billed as a surgical assistant or a co-surgeon. Plaintiff’s rebuttal witness, Dr. Giugliano, testified that the classifications are interchangeable and he was entitled to bill as a co-surgeon. Absent proof to the contrary, the court finds that plaintiff was entitled to bill as a co-surgeon under the Fee Schedule.

With respect to plaintiff utilizing the surgery CPT codes, the court finds that plaintiff successfully rebutted defendant’s testimony and plaintiff was entitled to use these CPT codes as the procedures were not listed under the chiropractic fee schedule. When a charge for a reimbursable service has not been scheduled by the superintendent, then the provider shall establish a fee consistent with other fees for comparable procedures shown in such schedule subject to review by the insurer. (Id.; see also Studin v Allstate Ins. Co., 152 Misc 2d 221 [Suffolk Dist Ct 1991].) Therefore, the court finds that plaintiff established that the procedures were properly billed pursuant to the Fee Schedule and plaintiff is entitled to be reimbursed for the services performed.{**29 Misc 3d at 370}

Judgment in favor of the plaintiff in the amount of $2,980.58 plus costs, disbursements, [*3]statutory interest and statutory attorneys fees.

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: Court finally rejected the fee schedule defense; provider recovers the disputed amount

After trial limited to fee schedule application, held the chiropractor properly billed unlisted procedures under surgery CPT codes as co-surgeon, rebutting the insurer's analyst, and awarded the full amount.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 239
  • Trial courtsTrial 39
2016, Court of Appeals: 1 decision (1 Excess shown)2022, Appellate Division: 1 decision (1 Excess shown)2020, Appellate Division: 1 decision (1 Not established; open)2019, Appellate Division: 2 decisions (1 Excess shown, 1 Defense rejected)2015, Appellate Division: 1 decision (1 Excess shown)2008, Appellate Division: 1 decision (1 Excess shown)2022, Appellate Term: 8 decisions (4 Excess shown, 2 Not established; open, 1 Defense rejected, 1 Split by charge)2021, Appellate Term: 5 decisions (1 Excess shown, 1 Not established; open, 3 Defense rejected)2020, Appellate Term: 10 decisions (6 Excess shown, 3 Not established; open, 1 Split by charge)2019, Appellate Term: 16 decisions (13 Excess shown, 2 Not established; open, 1 Split by charge)2018, Appellate Term: 10 decisions (9 Excess shown, 1 Split by charge)2017, Appellate Term: 47 decisions (27 Excess shown, 15 Not established; open, 5 Split by charge)2016, Appellate Term: 21 decisions (11 Excess shown, 7 Not established; open, 1 Defense rejected, 2 Split by charge)2015, Appellate Term: 13 decisions (10 Excess shown, 3 Not established; open)2014, Appellate Term: 13 decisions (7 Excess shown, 5 Not established; open, 1 Split by charge)2013, Appellate Term: 13 decisions (3 Excess shown, 8 Not established; open, 2 Split by charge)2012, Appellate Term: 20 decisions (15 Excess shown, 3 Not established; open, 1 Defense rejected, 1 Split by charge)2011, Appellate Term: 18 decisions (8 Excess shown, 5 Not established; open, 5 Split by charge)2010, Appellate Term: 15 decisions (7 Excess shown, 3 Not established; open, 3 Defense rejected, 2 Split by charge)2009, Appellate Term: 6 decisions (4 Excess shown, 2 Not established; open)2008, Appellate Term: 2 decisions (1 Excess shown, 1 Not established; open)2007, Appellate Term: 5 decisions (3 Excess shown, 2 Not established; open)2006, Appellate Term: 2 decisions (1 Not established; open, 1 Defense rejected)2005, Appellate Term: 5 decisions (1 Not established; open, 4 Defense rejected)2004, Appellate Term: 3 decisions (1 Not established; open, 2 Defense rejected)2003, Appellate Term: 2 decisions (2 Defense rejected)2023, Appellate Term: 1 decision (1 Excess shown)2025, Appellate Term: 1 decision (1 Not established; open)2026, Appellate Term: 3 decisions (2 Excess shown, 1 Not established; open)2022, Trial courts: 4 decisions (2 Excess shown, 2 Not established; open)2021, Trial courts: 4 decisions (1 Excess shown, 3 Not established; open)2017, Trial courts: 2 decisions (2 Excess shown)2016, Trial courts: 2 decisions (1 Excess shown, 1 Not established; open)2015, Trial courts: 1 decision (1 Not established; open)2013, Trial courts: 2 decisions (1 Not established; open, 1 Defense rejected)2012, Trial courts: 2 decisions (1 Not established; open, 1 Defense rejected)2011, Trial courts: 1 decision (1 Excess shown)2010, Trial courts: 2 decisions (1 Defense rejected, 1 Split by charge)2009, Trial courts: 2 decisions (1 Excess shown, 1 Defense rejected)2008, Trial courts: 1 decision (1 Not established; open)2007, Trial courts: 2 decisions (2 Not established; open)2006, Trial courts: 3 decisions (3 Defense rejected)2005, Trial courts: 3 decisions (2 Excess shown, 1 Not established; open)2004, Trial courts: 2 decisions (2 Defense rejected)2024, Trial courts: 1 decision (1 Defense rejected)2026, Trial courts: 3 decisions (2 Not established; open, 1 Split by charge)2018, Trial courts: 2 decisions (2 Not established; open)This decision
20052010201520202025
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, 29 (this one included) are in the same category.

Cited in this decision

  • Roberts Physical Therapy, P.C. v State Farm Mut. Auto Ins. Co. (2006 NY Slip Op 52565(U))The insurer failed at trial to substantiate its fee-schedule and medical-necessity defenses to physical therapy claims.

Cited by

A label shows how the later decision treated this one.

  • Willets Point Chiropractic P.C. v Allstate Ins. (2012 NY Slip Op 51614(U)) Declined to followChiropractors may not perform manipulation under anesthesia under New York's statutory definition of chiropractic practice.
  • Kraft v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 21413)A chiropractor may perform hip manipulation under anesthesia for spinal nerve interference but may not administer the anesthesia.

Similar decisions

  • Accelerated Chiropractic Care P.C. v Progressive Ins. (2017 NY Slip Op 51967(U))The insurer failed to prove that manipulation under anesthesia was medically unnecessary but established a fee schedule reduction.
  • Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2007 NY Slip Op 50874(U))The insurer's use of physical-therapy rates for acupuncture claims was upheld because the provider did not dispute similarity of the procedures.
  • Doctor of Medicine in the House, P.C. v Allstate Ins. Co. (2013 NY Slip Op 23357)The physical medicine fee schedule's eight-unit daily reimbursement limit applies to each provider individually.
  • A.B. Med. Servs. P.L.L.C. v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50662(U))The insurer failed to prove psychotherapy and neurological testing medically unnecessary at trial, but established duplicate motor nerve billing.
  • East Coast Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 26042)A fee schedule defense for services rendered after April 1, 2013 is not precluded by a denial issued beyond 30 days.
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