December 19, 2017

GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51832(U))

https://www.beynensonlaw.com/case-law/gbi-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2017-ny-slip-op51832u/

Court: Appellate Term, Second Department
Decided: December 19, 2017
Citation: 2017 NY Slip Op 51832(U) · 58 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Fee schedule Verification requests
Legal questions: Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 137(A), 2017 NY Slip Op 51832(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 prove tolling for four facially late denials but prevailed on fee-schedule reductions for four other claims. For the first through fourth causes of action, the denial forms were untimely on their face, and the insurer failed to establish timely mailing of verification requests that would toll its time to pay or deny. For the fifth through eighth causes of action, the provider challenged use of the workers' compensation acupuncture fee schedule for chiropractors. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., that schedule could determine reimbursement for a licensed acupuncturist. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment on the first four causes of action and affirmed dismissal of the remaining four.

Reported in New York Official Reports at GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51832(U))

[*1]

GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2017 NY Slip Op 51832(U) [58 Misc 3d 137(A)]

Decided on December 19, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1339 K C

GBI Acupuncture, P.C., as Assignee of Gray, Willie, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 9, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first four causes of action are denied; as so modified, the order is affirmed, without 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 granted defendant’s motion for summary judgment dismissing the complaint.

Defendant’s denial of claim forms with respect to the claims underlying the first four causes of action were untimely on their face and, as plaintiff argues, defendant did not establish, as a matter of law, that it had tolled its time to pay or deny those claims by timely mailing verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action should have been denied.

With respect to the fifth through eighth causes of action, plaintiff argues that defendant [*2]failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first four causes of action are denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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 insurer failed to establish as a matter of law that it timely mailed verification requests tolling its time, so its facially untimely denials of the first four claims could not support dismissal.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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 properly reduced licensed acupuncturist charges to the chiropractor acupuncture rate under the workers' compensation fee schedule, so dismissal of those claims was affirmed.

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

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 146 (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.
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

Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))MVAIC established overbilling under the acupuncture fee schedule but failed to establish exhaustion of available coverage.
Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50196(U))A licensed acupuncturist's services before October 1, 2020 are reimbursed under the workers' compensation fee schedule for chiropractors.

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 21st Century Ins. Co. (2015 NY Slip Op 51235(U))The insurer established timely denials and proper reimbursement under the workers' compensation fee schedule for the acupuncture services.
Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))The insurer established full payment at the workers' compensation fee-schedule rate for chiropractic acupuncture.
BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))An insurer may use the workers' compensation fee schedule for acupuncture by chiropractors to reimburse a licensed acupuncturist.
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.