March 11, 2016

Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch. (2016 NY Slip Op 50309(U))

https://www.beynensonlaw.com/case-law/acupuncture-healthcare-plaza-i-p-c-v-truck-ins-exch-2016-ny-slip-op50309u/

Court: Appellate Term, Second Department
Decided: March 11, 2016
Citation: 2016 NY Slip Op 50309(U) · 50 Misc 3d 146(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

Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch., 50 Misc 3d 146(A), 2016 NY Slip Op 50309(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 timely mailing of its denial and full payment under the fee schedule for acupuncture performed by chiropractors. The provider sought assigned first-party no-fault benefits for acupuncture services. The insurer moved for summary judgment on the ground that it had properly reimbursed those services using the workers' compensation fee schedule applicable to chiropractors rendering the same services as acupuncturists. The provider contested timely mailing of the denial both below and on appeal, but the insurer established mailing and demonstrated full payment under that schedule, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch. (2016 NY Slip Op 50309(U))

[*1]

Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch.

2016 NY Slip Op 50309(U) [50 Misc 3d 146(A)]

Decided on March 11, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1418 K C

Acupuncture Healthcare Plaza I, P.C. as Assignee of Bernard Absolv, Appellant,
against
Truck Insurance Exchange, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered May 1, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. The Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, raised in the Civil Court and on appeal, defendant established that the denial of claim form at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant established its entitlement to judgment as a matter of law.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: March 11, 2016

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

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

Held the insurer fully paid the acupuncture services at the chiropractor acupuncture rate of the workers' compensation fee schedule, entitling it to dismissal.

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.

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 insurer established that the denial of claim form had been timely mailed.

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.

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.
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.

Cited by

Adelaida M. Laga, Pt v 21st Century Ins. Co. (2016 NY Slip Op 51623(U))The insurer's summary judgment motion dismissing the first four causes of action was granted based on timely mailed denials.

Similar decisions

GL Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51698(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.
BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
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.
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.
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.