LVOV Acupuncture, P.C. v GEICO (2011 NY Slip Op 51844(U))

Reported in New York Official Reports at LVOV Acupuncture, P.C. v GEICO (2011 NY Slip Op 51844(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 5, 2009. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment as to claims for services rendered between May 20, 2005 and August 26, 2005.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment as to the claims for services rendered between May 20, 2005 and August 26, 2005 are granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on May 20, 2005 and are otherwise denied; as so modified, the order, insofar as appealed from, is affirmed, without costs, and, upon searching the record, partial summary judgment is awarded to defendant dismissing the remaining claims for these services.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant alleged that it had properly reimbursed plaintiff for the acupuncture services it had rendered between May 20, 2005 and August 26, 2005 by using the workers’ compensation fee schedule applicable to chiropractors who render the same services billed for herein, and that, based upon an independent medical examination, it had denied reimbursement for the claims for services rendered between September 1, 2005 and September 6, 2005 due to a lack of medical necessity. By order entered August 5, 2009, the Civil Court granted plaintiff’s motion as to the claims for services rendered between May 20, 2005 and August 26, 2005, because defendant did not submit the workers’ compensation fee schedule to [*2]the court, and denied plaintiff’s motion as to the claims for services rendered between September 1, 2005 and September 6, 2005, finding that there was a triable issue of fact as to the medical necessity of these services.

On appeal, defendant argues that plaintiff’s motion for summary judgment should not have been granted as to the claims for services rendered between May 20, 2005 and August 26, 2005. Defendant further argues that it sufficiently demonstrated that the services rendered between September 1, 2005 and September 6, 2005 were not medically necessary, that plaintiff failed to rebut this showing and that this court should search the record and dismiss the complaint as to the claims for those services.

We find that the workers’ compensation fee schedule, which is mandated by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Furthermore, the affidavit of defendant’s claims division employee was sufficient to establish that defendant’s denial of claim forms, which partially denied plaintiff’s claims pursuant to the fee schedule, had been timely mailed in accordance with defendant’s standard office practices and procedures (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]).

Since defendant established that it had fully paid plaintiff the amount to which plaintiff is entitled for services billed under codes 97810 and 97811 of the workers’ compensation fee schedule, it is appropriate for this court to search the record and award defendant summary judgment dismissing plaintiff’s complaint as to these claims (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $160.56 for the initial acupuncture visit on May 20, 2005, billed under fee schedule treatment code 99204 (cf. Rogy Med., 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 as to this claim.

We decline defendant’s request that we search the record and grant defendant summary judgment as to the claims for services rendered between September 1, 2005 and September 6, 2005 (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment as to the claims for services rendered between May 20, 2005 and August 26, 2005 are granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on May 20, 2005 and are otherwise denied, and, upon searching the record, partial summary judgment is awarded to [*3]defendant dismissing the remaining claims for these services.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011