September 26, 2018

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))

https://www.beynensonlaw.com/case-law/mingmen-acupuncture-servs-pc-v-global-liberty-ins-co-of-n-y-2018-ny-slip-op51358u/

Court: Appellate Term, First Department
Decided: September 26, 2018
Citation: 2018 NY Slip Op 51358(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y., 2018 NY Slip Op 51358(U) (App Term, 1st Dept 2018)

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 IME report established that further acupuncture treatment was not medically necessary. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's motion for summary judgment, and dismissed the provider's complaint. The insurer timely denied the claims based on a sworn IME report that supplied a factual basis and medical rationale for concluding that the assignor's injuries had resolved. The provider's principal's affidavit raised no triable issue because it was not based on an examination and did not meaningfully rebut the examiner's findings, including normal range-of-motion results. The assignor's subjective pain complaints did not overcome the objective tests detailed in the report.

Reported in New York Official Reports at Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51358(U))

Mingmen Acupuncture Services, PC, a/a/o Sergio Castelan, Plaintiff-Respondent,
against
Global Liberty Insurance Company of New York, Defendant-Appellant.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered September 28, 2017, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered September 28, 2017, insofar as appealed from, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent examination report [IME] of its examining acupuncturist/chiropractor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]); Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]).

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 26, 2018

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.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the sworn IME report showing resolved injuries and normal range of motion established no need for further acupuncture, and the principal's affidavit, not based on an examination, failed to meaningfully rebut it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 73 decisions on this question in the First Department courts and the Court of Appeals, 29 (this one included) are in the same category.

Cited in this decision

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

Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U)) FollowedThe physical therapy provider failed to rebut the insurer's IME findings that the assignor's injuries had resolved and further treatment was unnecessary.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U)) FollowedThe provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.
TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U)) FollowedThe insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.

Cited by

A label shows how the later decision treated this one.

Forest Drugs v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51708(U)) FollowedThe provider's medical affirmation and the assignor's subjective pain complaints failed to rebut the insurer's IME findings.
American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.

Similar decisions

SMB Med., PC v Federal Ins. Co. (2015 NY Slip Op 50895(U))The insurer's IME report established that further acupuncture was unnecessary, and the provider's medical report did not address acupuncture.
Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
Acupuncture Pain Mgt., P.C. v Kemper Cas. Ins. Co. (2015 NY Slip Op 51522(U))An assignor's IME nonappearance permits retroactive denial of all claims, regardless of denial timeliness or different initial denial grounds.