January 14, 2013

Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2013 NY Slip Op 50066(U))

https://www.beynensonlaw.com/case-law/axis-chiropractic-pllc-v-geico-gen-ins-co-2013-ny-slip-op50066u/

Court: Appellate Term, Second Department
Decided: January 14, 2013
Citation: 2013 NY Slip Op 50066(U) · 38 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Axis Chiropractic, PLLC v Geico Gen. Ins. Co., 38 Misc 3d 134(A), 2013 NY Slip Op 50066(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 provider failed to raise a triable issue against an IME report establishing lack of medical necessity. The insurer's cross motion was supported by proof of timely mailing of its denials and an affirmed IME report giving a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider submitted no affidavit or affirmation from a medical professional rebutting the report's conclusions. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, sustaining the insurer's cross motion for summary judgment on the assigned no-fault claims.

Reported in New York Official Reports at Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2013 NY Slip Op 50066(U))

[*1]

Axis Chiropractic, PLLC v Geico Gen. Ins. Co.

2013 NY Slip Op 50066(U) [38 Misc 3d 134(A)]

Decided on January 14, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-40 K C.

Axis Chiropractic, PLLC as Assignee of LEONAR PUGH, Appellant, —
against
Geico General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 25, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal from the order is deemed to be from a judgment of the same court entered December 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

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, as limited by its brief, from so much of an order of the Civil Court as 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]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had 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]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the determination by defendant’s chiropractor that there was a lack of medical necessity for the services rendered (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation or an affidavit from a medical professional rebutting the conclusions set forth in the IME report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 2013

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.

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 affirmed IME report set forth a factual basis and medical rationale, and the provider submitted no medical professional's affidavit rebutting it, so the insurer won summary judgment.

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.

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 (rules on the question, but another ground decided the case)

Held the insurer's affidavit established timely mailing of the denial of claim forms based on lack of medical necessity.

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.

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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U)) FollowedThe insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
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.

Similar decisions

Glenn Segal PT, P.C. v GEICO (2014 NY Slip Op 51301(U))The provider's doctor's affidavit failed to rebut two IME reports establishing a lack of medical necessity for further treatment.
Morris Park Chiropractic, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52017(U))The provider's chiropractor failed to meaningfully address or rebut the IME report finding the disputed services medically unnecessary.
AJS Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 50208(U))The insurer's chiropractic IME report and supporting affidavit established lack of medical necessity, and the provider offered no rebuttal evidence.
Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))The insurer established timely mailing of IME notices and denials and the assignors' failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, affidavits from the scheduling company's president established timely mailing through standard office practices and procedures.
ABA Chiropractic, P.C. v Geico Gen. Ins. Co. (2013 NY Slip Op 52002(U))The insurer's cross motion for summary judgment on medical necessity was denied on appeal because a triable issue remained.