March 11, 2014

Ema Acupuncture, P.C. v Geico Ins. Co. (2014 NY Slip Op 50415(U))

https://www.beynensonlaw.com/case-law/ema-acupuncture-p-c-v-geico-ins-co-2014-ny-slip-op50415u/

Court: Appellate Term, Second Department
Decided: March 11, 2014
Citation: 2014 NY Slip Op 50415(U) · 42 Misc 3d 150(A)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Provider's prima facie case Interest and attorney fees
Legal questions: Proving a fee schedule defense · Claimant's prima facie case on motions (see the maps)

Cite as

Ema Acupuncture, P.C. v Geico Ins. Co., 42 Misc 3d 150(A), 2014 NY Slip Op 50415(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 proved full fee-schedule payment of the acupuncture claims except the initial-visit claim, which remained payable. The Appellate Term, Second Department, modified the order to preserve provider summary judgment only for the initial visit billed under treatment code 99205, deny the provider's motion otherwise, and grant the insurer summary judgment dismissing the remaining claims. The provider's owner's affidavit established its prima facie entitlement, and the insurer raised no ground to dismiss the initial-visit claim. The court rejected the insurer's contention that 11 NYCRR 65-4.6 (i) barred attorney fees for that claim. For the other services, the insurer established full payment under the chiropractor acupuncture fee schedule, and counsel's opposing affirmation raised no triable issue.

Reported in New York Official Reports at Ema Acupuncture, P.C. v Geico Ins. Co. (2014 NY Slip Op 50415(U))

[*1]

Ema Acupuncture, P.C. v Geico Ins. Co.

2014 NY Slip Op 50415(U) [42 Misc 3d 150(A)]

Decided on March 11, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-369 K C.

Ema Acupuncture, P.C. as Assignee of ORALIA HERNANDEZ, Respondent,
against
Geico Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $154.29 for the initial acupuncture visit on January 6, 2009 is granted and plaintiff’s motion is otherwise denied, and by further providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Defendant did not raise any issue warranting the dismissal of plaintiff’s claim for $154.29 for the initial acupuncture visit on January 6, 2009, billed for under fee schedule treatment code 99205 (cf. Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon this claim, and which denied defendant’s cross motion insofar as it sought summary judgment dismissing that portion of the complaint. Defendant’s contention that plaintiff is barred from recovering attorney’s fees with respect thereto pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.6 (i) lacks merit.

As to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of [*2]fact.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $154.29 for the initial acupuncture visit on January 6, 2009 is granted and plaintiff’s motion is otherwise denied, and by further providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims are granted; as so modified, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 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.

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: Excess shown for some charges, not for others

Held the insurer showed full payment at the chiropractor acupuncture rate for the session claims, but raised no issue defeating the initial-visit claim billed under code 99205, which was awarded to the provider.

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

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider owner's affidavit sufficient to establish prima facie entitlement to summary judgment, rejecting the insurer's contrary contention.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) Contrasted (cf., but see)The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.

Similar decisions

WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))The insurer established full payment under the chiropractic acupuncture fee schedule except for the initial visit claim.
LMS Acupuncture, P.C. v Geico Ins. Co. (2014 NY Slip Op 50416(U))The insurer established full payment under the chiropractor acupuncture fee schedule for all claims except one awarded to the provider.
AL Acupuncture, P.C. v Geico Ins. Co. (2017 NY Slip Op 51249(U))The insurer proved full fee-schedule payment of some claims but failed to establish mailing of IME notices for another claim.
MIA Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51731(U))The insurer proved full payment of fee schedule claims and raised a medical necessity issue on the remaining acupuncture claims.
Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.