November 12, 2015

Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 51623(U))

https://www.beynensonlaw.com/case-law/healthy-way-acupuncture-p-c-v-amica-mut-ins-co-2015-ny-slip-op-51623u/

Court: Appellate Term, First Department
Decided: November 12, 2015
Citation: 2015 NY Slip Op 51623(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co., 2015 NY Slip Op 51623(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 established a proper acupuncture fee-schedule denial; a mistaken year in the notary's jurat affected no substantial right. The provider sought the difference between its charges and payments made under the workers' compensation fee schedule. The insurer's affidavits and documentary evidence established timely denial and that the charges exceeded the permitted reimbursement. Under CPLR 2001, the jurat error was properly disregarded because it affected no party's substantial right. The provider raised no triable issue concerning mailing of the denial or calculation of the fee. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the claim.

Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 51623(U))

[*1]

Healthy Way Acupuncture, P.C. v Amica Mut. Ins. Co.

2015 NY Slip Op 51623(U)

Decided on November 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570815/15

Healthy Way Acupuncture, P.C., a/a/o Samuel Vazquez, Plaintiff-Appellant,
against
Amica Mutual Ins. Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), dated January 7, 2015, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Alexander M. Tisch, J.), dated January 7, 2015, affirmed, with $10 costs.

The affidavits and other documentary evidence submitted by defendant in support of its motion for summary judgment established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s claim for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services rendered to its assignor exceeded the amount permitted by the 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, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept 2009]). The mistake contained in the notary’s jurat (as to the year) was properly disregarded, since no substantial right of a party was affected (see CPLR 2001).

In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee. Accordingly, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule – was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 12, 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

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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 denied the acupuncture charges as exceeding the fee schedule and the provider raised no triable issue on the fee calculation, 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.

Proof of mailing

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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)

Held the insurer's affidavits established timely denial, disregarding a year error in the notary's jurat, and the provider raised no triable issue as to the efficacy of the mailing.

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

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. One decision in other departments that cites or is cited by this one is on the full map.

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.
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.

Similar decisions

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.
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))The insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial.
Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 50078(U))An out-of-state affidavit's missing certificate of conformity may be disregarded where no substantial right is prejudiced.
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.
Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U))The insurer established timely denials and proper fee schedule calculations for the provider's acupuncture claims.