May 19, 2009
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2009 NY Slip Op 51017(U))
https://www.beynensonlaw.com/case-law/ava-acupuncture-p-c-v-geico-gen-ins-co-2009-ny-slip-op51017u/
- Decided
- May 19, 2009
- Citation
- 2009 NY Slip Op 51017(U) · 23 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Proving a fee schedule defense · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2009 NY Slip Op 51017(U))
| AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. |
| 2009 NY Slip Op 51017(U) [23 Misc 3d 140(A)] |
| Decided on May 19, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2008-498 K C.
against
GEICO General Ins. Co. Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 21, 2007. The order, insofar as appealed from, denied defendant’s motion for summary judgment.
Order, insofar as appealed from, reversed without costs, defendant’s motion for summary judgment granted and complaint dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. In an affidavit in support of defendant’s motion for summary judgment, an employee in defendant’s claims division stated that plaintiff billed defendant for 21 sessions of acupuncture with its licensed acupuncturist at a rate of $90 per session, for a total of $1,890. Defendant paid plaintiff for 21 sessions at a reduced rate of $29.30 per session, which, defendant claimed, was the workers’ compensation fee schedule amount payable to licensed chiropractors for similar services, for a total of $615.30. Plaintiff sought full reimbursement, or the remaining $1,274.70, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated. Finding that triable issues of fact existed, the Civil Court denied defendant’s motion for summary judgment and plaintiff’s cross motion for summary judgment. Defendant appeals from so much of the order as denied its motion for summary judgment. [*2]
Defendant established its prima facie entitlement to summary judgment by showing that it timely mailed its denial of claim forms, which partially denied plaintiff’s claims on the ground that the fees charged by plaintiff exceeded the maximum allowance under the applicable fee schedules. Contrary to plaintiff’s contention, the affidavit submitted by defendant, from one of its employees in its claims division, sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the 21 sessions (see Ava Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been granted.
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: May 19, 2009
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.
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 properly paid the licensed acupuncturist's 21 sessions at the workers' compensation rate for acupuncture by chiropractors, so nothing more was due and the complaint was dismissed.
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.
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)
Held the claims employee's affidavit sufficiently established that the partial denials were timely mailed in accordance with the insurer's standard office practice and procedure, rejecting the provider's challenge.
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.
- 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 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.
Cited by
A label shows how the later decision treated this one.
- Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U)) FollowedThe insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance.
- 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.
Similar decisions
- 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.
- Amercure Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 50068(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse services rendered by a licensed acupuncturist.
- 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.
- 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.
- LVOV Acupuncture, P.C. v GEICO Ins. Co. (2011 NY Slip Op 51845(U))The workers' compensation fee schedule incorporated into no-fault regulations may be judicially noticed under CPLR 4511 (b).