December 8, 2023

Metro Pain Specialists, P.C. v Mid-Century Ins. Co. (2023 NY Slip Op 51394(U))

https://www.beynensonlaw.com/case-law/metro-pain-specialists-p-c-v-mid-century-ins-co-2023-ny-slip-op51394u/

Court: Appellate Term, Second Department
Decided: December 8, 2023
Citation: 2023 NY Slip Op 51394(U) · 81 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Metro Pain Specialists, P.C. v Mid-Century Ins. Co., 81 Misc 3d 135(A), 2023 NY Slip Op 51394(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2023)

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's affidavits established that the unpaid portion of the provider's claim exceeded the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the reargument order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. Affidavits from a claims representative and a certified professional coder established the fee-schedule defense prima facie. The provider's opposition consisted solely of counsel's affirmation, which did not establish personal knowledge and therefore raised no triable issue. The court also dismissed the appeal from the original order because the reargument order had superseded it.

Reported in New York Official Reports at Metro Pain Specialists, P.C. v Mid-Century Ins. Co. (2023 NY Slip Op 51394(U))

[*1]

Metro Pain Specialists, P.C. v Mid-Century Ins. Co.

2023 NY Slip Op 51394(U) [81 Misc 3d 135(A)]

Decided on December 8, 2023

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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2023

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
2022-179 S C

Metro Pain Specialists, P.C., as Assignee of Natanael Contreras, Respondent,

against

Mid-Century Insurance Company, Appellant.

Law Offices of Rothenberg & Burns (Jennifer A. Joseph of counsel), for appellant. Law Office of Gabriel & Shapiro, LLC (Matthew Sledzinski of counsel), for respondent.

Appeals from orders of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered June 15, 2021 and October 3, 2022. The June 15, 2021 order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint. The October 3, 2022 order, insofar as appealed from, upon reargument, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from the order entered June 15, 2021 is dismissed, as that order was superseded by the order entered October 3, 2022; and it is further,

ORDERED that the order entered October 3, 2022, insofar as appealed from, is reversed, without costs, and, upon reargument, the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court, in an order entered October 3, 2022, upon granting the branch of defendant’s motion seeking reargument, denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the unpaid portion sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule, but held, in effect pursuant to CPLR 3212 (g), that the “only issue at trial shall be whether defendant properly paid the claim to fee schedule [sic].”

Defendant supported its motion with affidavits by its claim representative and a certified professional coder, which affidavits were sufficient to establish, prima facie, that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only [*2]an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts (see Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 76 Misc 3d 1126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 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]).

Accordingly, the order entered October 3, 2022, insofar as appealed from, is reversed and, upon reargument, the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 8, 2023

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 proved the billed amount exceeded the applicable fee schedule

Held the claim representative's and certified coder's affidavits established that the unpaid amount exceeded the fee schedule, and counsel's affirmation without personal knowledge 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 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.

Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50766(U)) FollowedThe insurer's own affidavits established the provider's entitlement to $97.14 on a fully denied claim billed under CPT code 99205.
GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U)) FollowedThe insurer established timely denials and proper reimbursement under the workers' compensation fee schedule for the acupuncture services.

Similar decisions

Metro Pain Specialist, P.C. v Hertz Co. (2019 NY Slip Op 52047(U))The insurer failed to establish that policy limits were exhausted when the provider's claim became complete.
Metro Pain Specialist, P.C. v ELRAC, Inc. (2020 NY Slip Op 51341(U))The defendant failed to prove proper mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
Pain Med., PLLC v Tri State Consumer Ins. Co. (2022 NY Slip Op 50567(U))The insurer's appeal from the denial of fee-schedule summary judgment was dismissed because the insurer was not aggrieved.
Merrick Med., P.C. v A Cent. Ins. Co. (2019 NY Slip Op 51264(U))The insurer established proper fee schedule payment of one claim and lack of medical necessity for the remaining claims.
Metro Pain Specialist, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2020 NY Slip Op 51381(U))The insurer's payment log was properly considered on its motion for summary judgment based on exhaustion of available coverage.