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March 6, 2009

Midwood Acupuncture, P.C. v Allstate Ins. Co. (2009 NY Slip Op 50459(U))

https://www.beynensonlaw.com/case-law/midwood-acupuncture-p-c-v-allstate-ins-co-2009-ny-slip-op50459u/

Court
Civil Court of the City of New York, Kings County
Judge
Edwards, J.
Decided
March 6, 2009
Citation
2009 NY Slip Op 50459(U) · 22 Misc 3d 1135(A)
Posture
Trial
Outcome
Insurer prevailed
Issues
Fee schedule
Legal questions
Proving a fee schedule defense (see the maps)
Cite as
Midwood Acupuncture, P.C. v Allstate Ins. Co., 22 Misc 3d 1135(A), 2009 NY Slip Op 50459(U) (Civ Ct, Kings County 2009)

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 proper grounds for reimbursing a licensed acupuncturist at the chiropractic rate under the Workers' Compensation Fee Schedule. The Civil Court, Kings County, entered judgment for the insurer and dismissed the complaint after a bench trial. The parties stipulated to the provider's prima facie case and timely denials. The insurer's claims representative explained that the schedule did not address licensed acupuncturists and that the insurer selected chiropractic rates by comparing educational and licensing requirements. Although the witness had not issued the denials, the witness testified that they were processed under the insurer's policies and procedures. Following Great Wall Acupuncture v Geico Gen. Ins. Co. and Ava Acupuncture v Geico Gen. Ins. Co., the court found the defense unrebutted.

Reported in New York Official Reports at Midwood Acupuncture, P.C. v Allstate Ins. Co. (2009 NY Slip Op 50459(U))

[*1]
Midwood Acupuncture, P.C. v Allstate Ins. Co.
2009 NY Slip Op 50459(U) [22 Misc 3d 1135(A)]
Decided on March 6, 2009
Civil Court Of The City Of New York, Kings County
Edwards, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2009

Civil Court of the City of New York, Kings County



Midwood Acupuncture, P.C. a/a/o Yensi Alan, Plaintiff,

against

Allstate Insurance Company, Defendant.

116467/04

Genine D. Edwards, J.

Plaintiff commenced this action to recover no-fault benefits from the defendant, for acupuncture services performed by its licensed acupuncturist to its assignor, Alan Yensi. A bench trial ensued.

At the outset, the parties stipulated that the plaintiff proved its prima facie case and the defendant timely denied the claims. In addition, the bills and denials were admitted into evidence. Plaintiff rested. At that point the burden of production shifted to the defendant to prove the basis of its denial. Before defendant called its witness, it made a motion to dismiss, based upon Great Wall Acupuncture v. Geico Gen. Ins. Co., 16 Misc 3d 23, 842 N.Y.S.2d 131 (App. Term, 2d Dept. 2007); Ava Acupuncture, P.C. v. Geico Gen. Ins. Co., 17 Misc 3d 41, 844 N.Y.S.2d 570 (App. Term, 2d Dept. 2007), contending that an insurer is entitled to remit payment at the chiropractic rate indicated in the Workers’ Compensation Fee Schedule. The plaintiff argued in opposition that the defendant was required to reveal its procedures for choosing the rate and the calculation of the amount. This Court reserved its decision.

The defendant’s claim representative testified that the Workers’ Compensation Fee Schedule is the tool used to pay healthcare providers. Since that schedule does not address licensed acupuncturists, the defendant compared the educational and licensing requirements and found that the chiropractic requirements are closest to the licensed acupuncturist. Therefore, the plaintiff was paid at the chiropractic rate. On cross-examination the claim representative testified that he was not the representative who denied the plaintiff’s claims, but indicated that the representative processed and issued the claims in accord with defendant’s policies and procedures, including using the Workers’ Compensation Fee Schedule.

After due deliberation of the credible evidence submitted, this Court finds that the defendant shouldered its burden of producing a proper grounds for denying full payment of the no-fault benefits based upon the Workers’ Compensation Fee Schedule. Great Wall Acupuncture, 16 Misc 3d at 23; Ava Acupuncture, P.C., 17 Misc 3d at 41; Ops Gen. Counsel NY Ins. Dept. 10-06-04. The plaintiff did not rebut this defense.

[*2]Accordingly, judgment in favor of the defendant and the complaint dismissed.

This constitutes the decision and order of this Court.

Dated: March 6, 2009

________________________

Genine D. Edwards

Judge of the Civil Court

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: Insurer proved the billed amount exceeded the applicable fee schedule

After trial, held the insurer met its burden by showing it paid the licensed acupuncturist at the chiropractor fee schedule rate, and the provider did not rebut the defense.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 6
  • Appellate TermApp Term 238
  • 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: 46 decisions (26 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 284 decisions on this question in the Second Department courts and the Court of Appeals, 146 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Great Wall Acupuncture v GEICO Gen. Ins. Co. (2007 NY Slip Op 27164) FollowedThe insurer properly reimbursed the licensed acupuncturist at chiropractor rates because similar services and licensing requirements supported them.
  • AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2007 NY Slip Op 27371) FollowedAn insurer may use the workers' compensation fee schedule for chiropractors to reimburse acupuncture performed by a licensed acupuncturist.

Similar decisions

  • Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467)An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
  • Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.
  • AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2009 NY Slip Op 51017(U))Acupuncture services rendered by a licensed acupuncturist may be reimbursed at the workers' compensation fee schedule rate for chiropractors.
  • 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.
  • NYS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51362(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule for chiropractors.
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