September 27, 2016

Liberty Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51409(U))

https://www.beynensonlaw.com/case-law/liberty-chiropractic-p-c-v-21st-century-ins-co-2016-ny-slip-op51409u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51409(U) · 53 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133(A), 2016 NY Slip Op 51409(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 establish the correct fee-schedule conversion factor or exhaustion of the daily physical medicine unit limit. The insurer sought dismissal based on excessive charges and prior payment to another provider for eight units per date, the limit under Physical Medicine Ground Rule 11. It did not demonstrate use of the correct conversion factor to calculate reimbursement. Its documents concerning the other provider lacked authentication, foundation and discussion; even at face value, they showed billing for only three units on each applicable date. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion.

Reported in New York Official Reports at Liberty Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51409(U))

[*1]

Liberty Chiropractic, P.C. v 21st Century Ins. Co.

2016 NY Slip Op 51409(U) [53 Misc 3d 133(A)]

Decided on September 27, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-399 Q C

Liberty Chiropractic, P.C., as Assignee of BRYANT BROWN, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 21, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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.

Plaintiff properly argues on appeal that defendant failed to establish its defense, that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule, as a matter of law (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). For example, defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate. In addition, defendant sought to demonstrate that plaintiff was not entitled to any payment for services rendered by plaintiff on specific dates because defendant had already paid another provider, Harvard Medical, P.C., for eight units of physical medicine procedures and/or modalities, the full number of units permitted by Physical Medicine Ground Rule 11, for each of those dates. However, the documents relied upon by defendant were attached to the motion papers without authentication, foundation or even discussion. Even if we were to take the documents at face value, they show only that Harvard Medical, P.C. had billed for a total of three units for each of the applicable dates.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 27, 2016

Legal questions

A question 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's proof did not establish the excess as a matter of law; question left for trial

Held the insurer failed to establish its fee schedule defense because it did not show it used the correct conversion factor, and its unauthenticated Ground Rule 11 documents showed the other provider billed only three units.

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, 85 (this one included) are in the same category.

Cited in this decision

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

Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Cited by

A label shows how the later decision treated this one.

NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51340(U)) FollowedThe insurer proved EUO nonappearance and a policy deductible on four causes of action, but its fee-schedule proof failed on the second.
Demas v State Farm Fire & Cas. Co. (2022 NY Slip Op 50250(U))The insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule.
Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U))The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.
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

Adelaida Physical Therapy, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51808(U))The insurer failed to establish its fee schedule defense because it did not demonstrate use of the correct conversion factor.
AVM Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51708(U))The insurer proved full fee schedule payment of three claims but failed to justify Ground Rule reductions of seven others.
Healthplus Surgery Ctr., LLC v American Tr. Ins. Co. (2022 NY Slip Op 02252)The insurer proved fee-schedule overbilling but failed to support its medical-necessity defense with a factual basis and medical rationale.
Triumph Assoc. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50875(U))The insurer proved its fee-schedule reductions, but the treating doctor's findings raised a factual issue on the remaining claims' necessity.
Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co. (2013 NY Slip Op 50904(U))The insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others.