May 26, 2011

Rogy Med., P.C. v Geico Ins. Co. (2011 NY Slip Op 50990(U))

https://www.beynensonlaw.com/case-law/rogy-med-p-c-v-geico-ins-co-2011-ny-slip-op-50990u/

Court: Appellate Term, Second Department
Decided: May 26, 2011
Citation: 2011 NY Slip Op 50990(U) · 31 Misc 3d 149(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Fee schedule
Legal questions: Lack of medical necessity · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Rogy Med., P.C. v Geico Ins. Co., 31 Misc 3d 149(A), 2011 NY Slip Op 50990(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 raised triable issues concerning medical necessity on one claim and fee-schedule compliance on another. The provider obtained summary judgment for assigned no-fault benefits, but the insurer established timely mailing of its denials through standard office practices and procedures. For the first cause of action, an affirmed peer review supplied a factual basis and medical rationale for the conclusion that the services lacked medical necessity. For the second, the record presented a factual issue whether the provider sought more than the workers' compensation fee schedule allowed. The Appellate Term, Second Department, reversed the judgment, vacated the order, and denied the provider's motion; it did not review the unchallenged determination concerning the provider's prima facie case.

Reported in New York Official Reports at Rogy Med., P.C. v Geico Ins. Co. (2011 NY Slip Op 50990(U))

[*1]

Rogy Med., P.C. v Geico Ins. Co.

2011 NY Slip Op 50990(U) [31 Misc 3d 149(A)]

Decided on May 26, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2010-40 Q C.

Rogy Medical, P.C. as Assignee of RICARDO CADICHON, Respondent,
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 19, 2009, deemed from a judgment of the same court entered December 23, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,971.57.

ORDERED that the judgment is reversed, without costs, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the grounds that the services rendered lacked medical necessity and that the provider billed in excess of the workers’ compensation fee schedule. By order entered November 19, 2009, the Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant established that the denial of claim forms at issue were timely mailed in accordance with defendant’s standard office practices and procedures (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]). With respect to the claim at issue in plaintiff’s first cause of action, which was denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report which set forth a [*2]factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for the services at issue. As a result, defendant demonstrated the existence of a triable issue of fact with respect to plaintiff’s first cause of action (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Similarly, with respect to the claim at issue in the second cause of action, an issue of fact was presented as to whether plaintiff is seeking to recover in excess of the amount permitted by the worker’s compensation fee schedule. Accordingly, the judgment is reversed, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 26, 2011

Legal questions (3)

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.

Lack of medical necessity

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

This decision: Insurer's proof was enough to defeat the provider's motion but not to win

Held the insurer's affirmed peer review report, setting forth a factual basis and medical rationale, raised a triable issue of fact on medical necessity, so the provider's summary judgment motion was denied on that claim.

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 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

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 an issue of fact existed as to whether the provider sought to recover more than the workers' compensation fee schedule permits, so the provider's summary judgment motion was denied on that claim.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

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 insurer established that its denial of claim forms were timely mailed in accordance with its standard office practices and procedures.

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) 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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.

Similar decisions

Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U))The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Crotona Hgts. Med., P.C. v GEICO Ins. Co. (2009 NY Slip Op 52466(U))The insurer's unrebutted peer review established lack of medical necessity for the provider's third and fourth causes of action.
Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.
Rogy Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 50629(U))The insurer established lack of medical necessity for three claims and outstanding verification for two, but failed on two others.