May 11, 2012

Raz Acupuncture, P.C. v New S. Ins. Co. (2012 NY Slip Op 50865(U))

https://www.beynensonlaw.com/case-law/raz-acupuncture-p-c-v-new-s-ins-co-2012-ny-slip-op-50865u/

Court: Appellate Term, Second Department
Decided: May 11, 2012
Citation: 2012 NY Slip Op 50865(U) · 35 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Raz Acupuncture, P.C. v New S. Ins. Co., 35 Misc 3d 140(A), 2012 NY Slip Op 50865(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 established full payment under the workers' compensation fee schedule for the four challenged causes of action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment dismissing the first, second, third and fifth causes of action. The insurer's affidavits established timely denials on the ground that the unpaid portions exceeded the permissible fee-schedule amounts. The insurer also demonstrated that it had fully paid for the services in accordance with that schedule, following Great Wall Acupuncture, P.C. v GEICO Ins. Co.

Reported in New York Official Reports at Raz Acupuncture, P.C. v New S. Ins. Co. (2012 NY Slip Op 50865(U))

[*1]

Raz Acupuncture, P.C. v New S. Ins. Co.

2012 NY Slip Op 50865(U) [35 Misc 3d 140(A)]

Decided on May 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2012

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

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-1714 K C.

Raz Acupuncture, P.C. as Assignee of DAVID MATATOV, Appellant, —
against
New South Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered August 14, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth causes of action.

The affidavits submitted by defendant in support of its cross motion for summary judgment established 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]) plaintiff’s claims on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee [*2]schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 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 proved the billed amount exceeded the applicable fee schedule

Held the insurer demonstrated it had fully paid the provider in accordance with the workers' compensation fee schedule, so dismissal of the causes of action for the unpaid portions was proper.

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

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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 insurer's affidavits established timely denial of the claims on the fee schedule ground, 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 1,400 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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
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.

Similar decisions

Raz Acupuncture, P.C. v Geico Gen. Ins. Co. (2012 NY Slip Op 51716(U))The insurer's summary judgment dismissing the disputed acupuncture claims on fee-schedule grounds was affirmed.
Raz Acupuncture, P.C. v AIG Indem. Ins. Co. (2010 NY Slip Op 51177(U))An insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist.
Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co. (2010 NY Slip Op 50065(U))The provider failed to establish admissible business records through its third-party billing company's employee.
Raz Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2012 NY Slip Op 50871(U))The provider's fee-schedule payment challenge failed, and its remaining contention relied on material outside the record.
Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld.