March 5, 2012

Perfect Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 50399(U))

https://www.beynensonlaw.com/case-law/perfect-point-acupuncture-p-c-v-clarendon-ins-co-2012-ny-slip-op50399u/

Court: Appellate Term, Second Department
Decided: March 5, 2012
Citation: 2012 NY Slip Op 50399(U) · 34 Misc 3d 155(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Perfect Point Acupuncture, P.C. v Clarendon Ins. Co., 34 Misc 3d 155(A), 2012 NY Slip Op 50399(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 cross motion for summary judgment on the unpaid acupuncture claims was denied for insufficient fee schedule proof. The claims examiner's affidavit established timely denials but did not support dismissal of the initial-visit claim or show that charges exceeded the relevant workers' compensation fee schedule rates, under Raz Acupuncture and Megacure Acupuncture. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.

Reported in New York Official Reports at Perfect Point Acupuncture, P.C. v Clarendon Ins. Co. (2012 NY Slip Op 50399(U))

[*1]

Perfect Point Acupuncture, P.C. v Clarendon Ins. Co.

2012 NY Slip Op 50399(U) [34 Misc 3d 155(A)]

Decided on March 5, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-730 K C.

Perfect Point Acupuncture, P.C. as Assignee of PAUL BOWEN, Respondent, —
against
Clarendon Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 28, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover the unpaid balances of assigned claims for first-party no-fault benefits, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by its claims examiner which was sufficient to establish that defendant had timely denied (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]) the portions of plaintiff’s claims at issue on the ground that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the amounts set forth in the workers’ compensation fee schedule. That affidavit, however, was sufficient neither to warrant the dismissal of plaintiff’s claim for the initial acupuncture visit of April 18, 2006 (see Raz Acupuncture, P.C. v [*2]AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) nor to establish defendant’s contention that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint, and the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012

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

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial

Held the claims examiner's affidavit insufficient to establish that the acupuncture charges, including the initial visit, exceeded the applicable fee schedule rates, so the insurer's summary judgment motion was properly denied.

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

Proof of mailing

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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 claims examiner's affidavit sufficient to establish timely denial of the disputed portions of the claims, a mailing finding supported by standard-practice authority.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Raz Acupuncture, P.C. v AIG Indem. Ins. Co. (2010 NY Slip Op 51177(U)) FollowedAn insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist.
Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52199(U)) FollowedThe insurer failed to prove that the acupuncture charges exceeded the fee schedule, and the provider failed to establish entitlement to judgment.

Similar decisions

Point of Health Acupuncture, P.C. v GEICO Ins. Co. (2010 NY Slip Op 51724(U))The insurer proved timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims.
Raz Acupuncture, P.C. v New S. Ins. Co. (2012 NY Slip Op 50865(U))The insurer established full payment under the workers' compensation fee schedule for the four challenged causes of action.
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.
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.