December 17, 2014

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))

https://www.beynensonlaw.com/case-law/easy-care-acupuncture-p-c-v-21-century-advantage-ins-co-2014-ny-slipop-51766u/

Court: Appellate Term, First Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51766(U) · 46 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Medical necessity
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 46 Misc 3d 126(A), 2014 NY Slip Op 51766(U) (App Term, 1st Dept 2014)

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 proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment. Its claims administrator's affidavit described placement in a mail bin and pickup by an outside mailing service, but gave no personal knowledge or description of that service's procedures to ensure timely, proper delivery. An affidavit from the mailing service submitted in reply did not cure the deficiency. The peer review acupuncturist also supplied insufficient facts or medical rationale; the assignor's subjective report of feeling worse after three months did not alone eliminate factual issues concerning medical necessity. The Appellate Term, First Department, reversed the order, insofar as appealed from, and reinstated the disputed claim.

Reported in New York Official Reports at Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))

[*1]

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co.

2014 NY Slip Op 51766(U) [46 Misc 3d 126(A)]

Decided on December 17, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570325/14

Easy Care Acupuncture, P.C., a/a/o Olevia Moore, Plaintiff-Appellant, –
against
21 Century Advantage Ins. Co. Defendant-Respondent.

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County,(Jennifer G. Schecter, J.), dated July 16, 2013, as granted defendant’s motion for summary judgment dismissing plaintiff’s no-fault claim in the amount of $355.

Per Curiam.

Order (Jennifer G. Schecter, J.), dated July 16, 2013, insofar as appealed from, reversed, with $10 costs, and plaintiff’s claim for first-party no-fault benefits in the amount of $355 reinstated.

Defendant’s motion for summary judgment dismissing plaintiff’s first-party no-fault claim seeking payment of $355 – stemming from acupuncture services rendered by plaintiff on December 1, 2009, December 10, 2009 and January 7, 2010 – should have been denied. Defendant failed to demonstrate, prima facie, that its denials were properly mailed (see Country-Wide Ins. Co. v Zabloski, 257 AD2d 506 [1999]). In this regard, the affidavit submitted by an employee of Farmers Insurance Exchange, defendant’s claims administrator, failed to adequately describe its office mailing procedures (see Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375 [1987]), merely stating that items placed in its “mail bin” are picked up by a nonparty entity – Pitney Bowes Services, Inc. (“Pitney Bowes”) – which brings the items on a daily basis to the post office. The affiant professed no personal knowledge of, nor did she attempt to describe, the procedures utilized by Pitney Bowes to assure timely and proper delivery. Nor were these deficiencies remedied by defendant’s submission in its reply papers below of an affidavit from a Pitney Bowes representative (see Batista v Santiago, 25 AD3d 326 [2006]).

Moreover, even beyond defendant’s shortcomings in proof concerning the mailing issue, the report of defendant’s peer review acupuncturist failed to set forth sufficient facts or medical rationale for his stated conclusion that further acupuncture treatment of plaintiff’s assignor was not medically necessary. That the assignor may have subjectively reported during the course of the peer review examination that she “feels worse” after three months of acupuncture treatment did not, by itself and without any objective medical explanation by the peer reviewer, eliminate [*2]all triable issues regarding the medical necessity of continued acupuncture treatment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: December 17, 2014

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.

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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the claims administrator's affidavit insufficient because it only said mail-bin items were picked up by a vendor, without knowledge or description of the vendor's procedures, and a reply affidavit could not cure it.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 23 (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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited) (rules on the question, but another ground decided the case)

Held the peer review acupuncturist's report lacked sufficient facts or medical rationale, as the assignor's subjective report of feeling worse did not without objective explanation eliminate triable issues on continued treatment.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 73 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category.

Similar decisions

Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))The insurer proved timely mailing of fee-schedule denials through office procedures and the provider's receipt of enclosed checks.
Easy Care Acupuncture, P.C. v ELRAC, Inc. (2017 NY Slip Op 50234(U))The defendant's failure to timely and properly mail a denial precluded its excessive-fee defense to the acupuncture claims.
Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co. (2015 NY Slip Op 51849(U))The insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim.
Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))The insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue.
Easy Care Acupuncture, PC v MVAIC (2017 NY Slip Op 51346(U))A failure to deny a claim within 30 days does not preclude a defense that coverage limits have been exhausted.