December 18, 2015

Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))

https://www.beynensonlaw.com/case-law/easy-care-acupuncture-pc-v-21st-century-indem-ins-co-2015-ny-slip-op51850u/

Court: Appellate Term, First Department
Decided: December 18, 2015
Citation: 2015 NY Slip Op 51850(U) · 50 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Fee schedule
Legal questions: Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co., 50 Misc 3d 127(A), 2015 NY Slip Op 51850(U) (App Term, 1st Dept 2015)

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 proved timely mailing of fee-schedule denials through office procedures and the provider's receipt of enclosed checks. The provider sought the difference between its acupuncture charges and payments under the applicable workers' compensation fee schedule. Affidavits detailed mailing procedures, including use of window envelopes displaying the addresses on the enclosed NF-10 or explanation of benefits. The provider conceded receiving the partial-payment checks and did not dispute that the NF-10 forms were in the same envelopes. It failed to raise a triable issue. The Appellate Term, First Department, affirmed summary judgment dismissing the complaint for the insurer, on grounds different from those stated by the Civil Court.

Reported in New York Official Reports at Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co. (2015 NY Slip Op 51850(U))

[*1]

Easy Care Acupuncture, PC v 21st Century Indem. Ins. Co.

2015 NY Slip Op 51850(U) [50 Misc 3d 127(A)]

Decided on December 18, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570722/14

Easy Care Acupuncture, PC, a/a/o Cecilia Murray, Plaintiff-Appellant,
against
21st Century Indemnity Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 16, 2013, which granted defendant’s motion dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered July 16, 2013, 2013, affirmed with $10 costs.

We sustain the grant of defendant-insurer’s motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record reveals that defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely and properly denied plaintiff’s no-fault claims on the ground that the fees charged by plaintiff for the acupuncture services rendered to its assignor exceeded the amount permitted by the applicable worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition, plaintiff failed to raise a triable issue. Contrary to plaintiff’s present argument, the affidavits of the employees of defendant’s mailing center and the entity which administers its no-fault claims, sufficiently detailed their respective office procedures, including the placement of the NF-10/Explanation of Benefits (EOB) and checks made out to plaintiff in partial payment of no-fault benefits, in a clear window envelope so that the mailing and return address on the front of the first page of the document were visible. Plaintiff, which conceded receipt of the payment checks, did not dispute that the NF-10 forms were contained in the same envelopes. Accordingly, defendant established its entitlement to summary judgment dismissing the claims – which sought the difference between the amount charged for the acupuncture services and payments made to plaintiff pursuant to the fee schedule.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2015

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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the affidavits of the mailing center and claims administrator sufficiently detailed office procedures placing the NF-10 with payment checks in window envelopes, and the provider conceded receiving the checks.

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 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category.

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 proved the billed amount exceeded the applicable fee schedule

Held the insurer established it timely and properly denied the acupuncture charges as exceeding the fee schedule and the provider raised no triable issue, so dismissal was affirmed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 22 (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

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))The insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture.
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.

Cited by

A label shows how the later decision treated this one.

Karina K. Acupuncture, P.C. v AIG Centennial Ins. Co. (2016 NY Slip Op 50415(U)) FollowedThe insurer's IME report established that further acupuncture was unnecessary, and the provider offered no competent medical evidence in opposition.

Similar decisions

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.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2014 NY Slip Op 51766(U))The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment.
Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.
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.
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.