August 6, 2015

GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U))

https://www.beynensonlaw.com/case-law/gbi-acupuncture-p-c-v-21st-century-ins-co-2015-ny-slip-op51235u/

Court: Appellate Term, Second Department
Decided: August 6, 2015
Citation: 2015 NY Slip Op 51235(U) · 48 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140(A), 2015 NY Slip Op 51235(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 established timely denials and proper reimbursement under the workers' compensation fee schedule for the acupuncture services. The provider sought summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint. The insurer's affidavits sufficiently proved timely mailing of the denial forms, and its certified professional coder's affidavit established that it properly applied the fee schedule to determine reimbursement. The provider failed to raise a triable issue of fact. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U))

[*1]

GBI Acupuncture, P.C. v 21st Century Ins. Co.

2015 NY Slip Op 51235(U) [48 Misc 3d 140(A)]

Decided on August 6, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-249 Q C

GBI Acupuncture, P.C. as Assignee of EARLLYNDA WHITTAKER-THOMPSON, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 19, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.Contrary to plaintiff’s arguments on appeal, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (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]). Furthermore, the affidavit executed by defendant’s certified professional coder established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s papers failed to raise a triable issue of fact in opposition to defendant’s cross motion. Consequently, the Civil Court properly denied plaintiff’s motion and granted defendant’s cross motion.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 06, 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.

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's certified coder affidavit established that it properly used the workers' compensation fee schedule to compute the amount due, and the provider raised no triable issue, so the complaint was dismissed.

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

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (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.

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)

Rejected the provider's challenge and held the insurer's affidavits sufficiently established timely mailing of the denial of claim forms.

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.
Raz Acupuncture, P.C. v AIG Indem. Ins. Co. (2010 NY Slip Op 51177(U)) FollowedAn insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist.
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.

Cited by

A label shows how the later decision treated this one.

Metro Pain Specialists, P.C. v Mid-Century Ins. Co. (2023 NY Slip Op 51394(U)) FollowedThe insurer's affidavits established that the unpaid portion of the provider's claim exceeded the workers' compensation fee schedule.
Tandingan PT PC v State Farm Fire & Cas. Co. (2021 NY Slip Op 50869(U))Three provider claims were barred by a declaratory judgment, and the insurer proved fee schedule payment of the fourth.
Pro-Align Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50341(U))The insurer's coding evidence established full payment under the fee schedule for the provider's pain fiber nerve conduction studies.
Medalliance Med. Health Servs. v Travelers Prop. Cas. Ins. Co. (2021 NY Slip Op 50737(U))The insurer's misaddressed verification requests failed to toll the 30-day period to pay or deny the provider's claims.

Similar decisions

GBI Acupuncture, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51237(U))The insurer's summary judgment dismissal of fee-schedule claims was affirmed after the provider's mailing and fee-schedule challenges were rejected.
GBI Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51412(U))The insurer failed to establish timely mailing of denials supporting its fee-schedule payment defense.
GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51832(U))The insurer failed to prove tolling for four facially late denials but prevailed on fee-schedule reductions for four other claims.
GL Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51698(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.
BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.