November 20, 2015

Natural Therapy Acupuncture, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51713(U))

https://www.beynensonlaw.com/case-law/natural-therapy-acupuncture-p-c-v-travelers-ins-co-2015-ny-slip-op51713u/

Court: Appellate Term, Second Department
Decided: November 20, 2015
Citation: 2015 NY Slip Op 51713(U) · 49 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Natural Therapy Acupuncture, P.C. v Travelers Ins. Co., 49 Misc 3d 149(A), 2015 NY Slip Op 51713(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors. The insurer sought summary judgment dismissing the provider's assigned no-fault action, asserting that it had properly paid the claims after applying the deductible. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer demonstrated payment in accordance with the applicable workers' compensation fee schedule. The provider's challenge to timely mailing failed, and its remaining contention was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51713(U))

[*1]

Natural Therapy Acupuncture, P.C. v Travelers Ins. Co.

2015 NY Slip Op 51713(U) [49 Misc 3d 149(A)]

Decided on November 20, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-851 K C

Natural Therapy Acupuncture, P.C. as Assignee of FATIMA DEAN, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 29, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible, it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant’s motion should have been denied.

Contrary to plaintiff’s contention, defendant established that the denial of claim form at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

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

Decision Date: November 20, 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

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 insurer, after applying the deductible, fully paid the services under the chiropractor acupuncture fee schedule, so dismissal was affirmed.

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

Proof of mailing

Open the full map

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)

Rejected the provider's contention and held the insurer established that the denial of claim form had been timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

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.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.

Cited by

A label shows how the later decision treated this one.

Compas Med., P.C. v Farmington Cas. Co. (2016 NY Slip Op 50925(U)) FollowedThe insurer established outstanding verification for one claim and timely mailing of IME nonappearance denials for the remaining claims.

Similar decisions

Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50389(U))The insurer's affidavit and exhibits established full payment for the disputed services under the workers' compensation fee schedule.
Natural Therapy Acupuncture, P.C. v Nationwide Ins. (2017 NY Slip Op 50943(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
Natural Therapy Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 51254(U))The insurer established that its payments complied with the workers' compensation fee schedule, and the provider failed to rebut that showing.
GL Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51698(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.
Acupuncture Healthcare Plaza I, P.C. v Truck Ins. Exch. (2016 NY Slip Op 50309(U))The insurer established timely mailing of its denial and full payment under the fee schedule for acupuncture performed by chiropractors.