August 11, 2014

Okslen Acupuncture P.C. v Travco Ins. Co. (2014 NY Slip Op 51209(U))

https://www.beynensonlaw.com/case-law/okslen-acupuncture-p-c-v-travco-ins-co-2014-ny-slip-op51209u/

Court: Appellate Term, First Department
Decided: August 11, 2014
Citation: 2014 NY Slip Op 51209(U) · 44 Misc 3d 135(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Okslen Acupuncture P.C. v Travco Ins. Co., 44 Misc 3d 135(A), 2014 NY Slip Op 51209(U) (App Term, 1st Dept 2014)

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 provider failed to show that its acupuncture services fell outside the physicians' workers' compensation fee schedule. The insurer's affidavits established timely and proper denial of reimbursement exceeding that schedule, and the provider raised no factual issue concerning either mailing or fee calculation. Counsel's affirmation did not address the nature of the services or show that they were not similar to acupuncture services generally performed by physicians under 11 NYCRR 68.5 (b). The claim sought the difference between the charges and payments already made under the fee schedule. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Okslen Acupuncture P.C. v Travco Ins. Co. (2014 NY Slip Op 51209(U))

[*1]

Okslen Acupuncture P.C. v Travco Ins. Co.

2014 NY Slip Op 51209(U) [44 Misc 3d 135(A)]

Decided on August 11, 2014

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570417/13

Okslen Acupuncture P.C., a/a/o Keiana Hardy, Plaintiff-Appellant, –
against
Travco Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered August 16, 2011, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered August 16, 2011, affirmed, with $10 costs.

This action seeks recovery of assigned first-party no-fault benefits arising from acupuncture services provided to plaintiff’s assignor by a licensed acupuncturist. The affidavits submitted by defendant in support of its motion for summary judgment established prima facie that defendant timely and properly denied plaintiff’s no-fault claim to the extent plaintiff sought reimbursement in an amount greater than that authorized by the workers’ compensation fee schedule applicable to physicians who render acupuncture services (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Gen. Ins. Co., 16 Misc 3d 23 [2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the claim denial or the calculation of the fee. With respect to the latter, the affirmation submitted by plaintiff’s counsel did not address the nature of the acupuncture services rendered to plaintiff’s assignor, much less demonstrate that those services were not “similar” to acupuncture services generally provided by physicians, so as to exempt plaintiff from the reach of the physicians’ workers’ compensation fee schedule (see 11 NYCRR 68.5[b]). Accordingly, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule – was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: August 11, 2014

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 properly limited a licensed acupuncturist's reimbursement to the physician acupuncture schedule because counsel's affirmation did not show the services were dissimilar to physicians' acupuncture, so no triable issue on the calculation existed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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)

Held the insurer's affidavits established timely and proper denial and the provider raised no triable issue as to the efficacy of the mailing of the claim denial.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))The insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture.
Great Wall Acupuncture v GEICO Gen. Ins. Co. (2007 NY Slip Op 27164)The insurer properly reimbursed the licensed acupuncturist at chiropractor rates because similar services and licensing requirements supported them.

Cited by

Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. (2019 NY Slip Op 08942)The insurers failed to establish that licensed acupuncturists could be reimbursed only under the chiropractic fee schedule.

Similar decisions

Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51887(U))The insurer's failure to deny the claim within 30 days precluded its defense that the provider's fees were excessive.
Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))The insurer failed to show entitlement to depositions because it did not establish timely denials preserving the asserted defenses.
Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co. (2014 NY Slip Op 51127(U))The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services.
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.
Acupuncture Works, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51654(U))The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims.