December 19, 2017

Adelaida Physical Therapy, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51808(U))

https://www.beynensonlaw.com/case-law/adelaida-physical-therapy-p-c-v-21st-century-ins-co-2017-ny-slip-op51808u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51808(U) · 58 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Contrasted (cf., but see) in 1 later decision (see Cited by)
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135(A), 2017 NY Slip Op 51808(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 failed to establish its fee schedule defense because it did not demonstrate use of the correct conversion factor. The provider appealed the dismissal of its assigned no-fault claims for services billed under CPT codes 97010, 97110 and 97124. Following Rogy Med., P.C. v Mercury Cas. Co., the Appellate Term, Second Department, concluded that the insurer had not established as a matter of law that the charges exceeded the workers' compensation fee schedule. It reversed the order, insofar as appealed from, and denied the branches of the insurer's summary judgment motion addressing those services.

Reported in New York Official Reports at Adelaida Physical Therapy, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51808(U))

[*1]

Adelaida Physical Therapy, P.C. v 21st Century Ins. Co.

2017 NY Slip Op 51808(U) [58 Misc 3d 135(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-608 Q C

Adelaida Physical Therapy, P.C., as Assignee of Belfort, Makerson, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Maryana Feigen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 11, 2015. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124 are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124.

Plaintiff properly argues on appeal that defendant failed to establish, as a matter of law, its defense that the fees charged with respect to the services billed under codes CPT 97010, 97110 and 97124 exceeded the amounts set forth in the workers’ compensation fee schedule therefor (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate. [*2]Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services should have been denied.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97010, 97110 and 97124 are denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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's proof did not establish the excess as a matter of law; question left for trial

Held the insurer failed to establish as a matter of law that the physical therapy charges exceeded the fee schedule because it did not show it used the correct conversion factor.

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, 85 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Cited by

A label shows how the later decision treated this one.

Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061) Contrasted (cf., but see)MVAIC established proper payment at chiropractic acupuncture rates, and the provider failed to show that physician rates should apply.
Demas v State Farm Fire & Cas. Co. (2022 NY Slip Op 50250(U))The insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule.
Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U))The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.
Medalliance Med. Health Servs. v Travelers Prop. Cas. Ins. Co. (2021 NY Slip Op 50737(U))The insurer's misaddressed verification requests failed to toll the 30-day period to pay or deny the provider's claims.

Similar decisions

Adelaida M. Laga, Pt v GEICO Ins. Co. (2017 NY Slip Op 51713(U))The insurer failed to establish the correct fee schedule conversion factor or proper application of Ground Rule 11.
Liberty Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51409(U))The insurer failed to establish the correct fee-schedule conversion factor or exhaustion of the daily physical medicine unit limit.
AVM Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51708(U))The insurer proved full fee schedule payment of three claims but failed to justify Ground Rule reductions of seven others.
Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))The insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims.
Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses.