August 31, 2012

Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51710(U))

https://www.beynensonlaw.com/case-law/apple-tree-acupuncture-p-c-v-progressive-northeastern-ins-co-2012-ny-slip-op51710u/

Court
Appellate Term, Second Department
Decided
August 31, 2012
Citation
2012 NY Slip Op 51710(U) · 36 Misc 3d 153
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Fee schedule
Legal questions
Proving a fee schedule defense (see the maps)
Cite as
Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co., 36 Misc 3d 153 (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.

An insurer may use the workers' compensation fee schedule for chiropractic acupuncture to reimburse a licensed acupuncturist. The provider challenged denials and explanations of benefits accompanying partial payments, and the insurer's use of medical-doctor rates for some claims and chiropractic rates for others. The forms sufficiently explained that the unpaid balances exceeded the fee schedule and that the permitted amounts had been paid. Under Great Wall Acupuncture, P.C. v Geico Ins. Co., the chiropractic rate was permissible. Payment of other claims at the higher medical-doctor rate supplied no basis to disturb their dismissal. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint following denial of the provider's summary judgment motion and grant of the insurer's cross motion.

Reported in New York Official Reports at Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co. (2012 NY Slip Op 51710(U))

[*1]
Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co.
2012 NY Slip Op 51710(U) [36 Misc 3d 153]
Decided on August 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2012

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


PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-182 K C.
Apple Tree Acupuncture, P.C. as Assignee of LORRAINE DAVIS, Appellant, —

against

Progressive Northeastern Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 4, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 4, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument regarding several of defendant’s denials, the denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying plaintiff’s bills on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and [*2]that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

Plaintiff’s remaining argument on appeal is that defendant’s cross motion should have been denied because defendant, without explanation, paid some of the claims at issue at the rate for acupuncture services performed by a medical doctor and paid the rest of the claims at the rate for acupuncture services performed by a chiropractor. This argument lacks merit. This court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant was therefore entitled to an award of summary judgment dismissing so much of the complaint as sought to recover upon the claims that had been reimbursed at that rate. As the remaining claims had been paid based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, there is no reason to disturb the portion of the order that granted defendant summary judgment dismissing so much of plaintiff’s complaint as sought to recover upon those claims (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012

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