August 24, 2012

Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))

https://www.beynensonlaw.com/case-law/acupuncture-works-p-c-v-state-farm-mut-auto-ins-co-2012-ny-slip-op51654u/

Court: Appellate Term, Second Department
Decided: August 24, 2012
Citation: 2012 NY Slip Op 51654(U) · 36 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 149(A), 2012 NY Slip Op 51654(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 acupuncture fee schedule and unrebutted lack of medical necessity for other claims. Its moving papers proved timely mailing of the denials. For the fee-schedule claims, the insurer showed payment of the amounts allowed for acupuncture services rendered by a chiropractor, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. For the remaining claims, its acupuncturist's sworn IME report established lack of medical necessity, and the provider's acupuncturist failed to meaningfully address the conclusions. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, upholding summary judgment for the insurer and denial of the provider's cross motion.

Reported in New York Official Reports at Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))

[*1]

Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co.

2012 NY Slip Op 51654(U) [36 Misc 3d 149(A)]

Decided on August 24, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2053 K C.

Acupuncture Works, P.C. as Assignee of LUIS QUIZHPI, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 24, 2009. The judgment, entered pursuant to an order of the same court granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment. Plaintiff appeals from a judgment which was subsequently entered dismissing the complaint.

Contrary to plaintiff’s contentions, defendant’s moving papers established that the denial of claim forms had been timely mailed (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]). With respect to the claims which were denied based upon the workers’ compensation fee schedule, defendant demonstrated that it had fully paid plaintiff the amount to which plaintiff was entitled in accordance with the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor (see Great Wall [*2]Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). With respect to the claims which were denied based upon an independent medical examination (IME) performed by defendant’s acupuncturist, the sworn IME report established a lack of medical necessity for the services, and the affidavit of plaintiff’s acupuncturist did not meaningfully refer to, let alone rebut, the conclusions of defendant’s acupuncturist (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In light of the foregoing, defendant’s motion for summary judgment dismissing the complaint was properly granted and plaintiff’s cross motion for summary judgment was properly denied.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 24, 2012

Legal questions (3)

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.

Proof of mailing

Open the full map

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

Rejected the provider's contentions and held the insurer's moving papers established that the denial of claim forms 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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the sworn IME report established lack of medical necessity, and the provider's acupuncturist's affidavit did not meaningfully refer to or rebut it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

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 showed it had fully paid the amount due under the fee schedule for acupuncture services rendered by a chiropractor.

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.

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.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Eastern Star Acupuncture, P.C. v Mercury Ins. Co. (2010 NY Slip Op 50380(U))The provider's supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity.

Similar decisions

Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))The insurer established full payment at the workers' compensation fee-schedule rate for chiropractic acupuncture.
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.
BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))An insurer may use the workers' compensation fee schedule for acupuncture by chiropractors to reimburse a licensed acupuncturist.
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.
Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch. (2016 NY Slip Op 50309(U))The insurer established timely mailing of its denial and full payment under the fee schedule for acupuncture performed by chiropractors.