March 26, 2004

Triboro Chiropractic & Acupuncture v Elec. Ins. Co. (2004 NY Slip Op 50215(U))

https://www.beynensonlaw.com/case-law/triboro-chiropractic-acupuncture-v-elec-ins-co-2004-ny-slip-op-50215u/

Court: Appellate Term, Second Department
Decided: March 26, 2004
Citation: 2004 NY Slip Op 50215(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Triboro Chiropractic & Acupuncture v Elec. Ins. Co., 2004 NY Slip Op 50215(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2004)

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 peer reviews and the assignor's apparent denial of receiving acupuncture raised factual issues barring partial summary judgment. The provider limited its appeal to benefits for treatment rendered before the IME, conceding factual issues concerning prior diagnostic tests and subsequent tests and treatment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, and remanded for further proceedings. The insurer's timely denials under former 11 NYCRR 65.15 (g) (3) relied on peer reviews supplying a sufficient factual foundation and medical rationale for rejecting certain treatments as unnecessary. For the acupuncture claims, the assignor's apparent denial of receiving treatment, recorded in the medical examination report, separately raised a triable issue whether those claims were appropriate.

Reported in New York Official Reports at Triboro Chiropractic & Acupuncture v Elec. Ins. Co. (2004 NY Slip Op 50215(U))

[*1]

Triboro Chiropractic & Acupuncture v Elec. Ins. Co.

2004 NY Slip Op 50215(U)

Decided on March 26, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-193 Q C

TRIBORO CHIROPRACTIC AND ACUPUNCTURE P.L.L.C a/a/o JERRY TACOPINO, Appellant,
against
ELECTRIC INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Queens County (P. Kelly, J.), entered October 23, 2002, denying its motion for partial summary judgment in the sum of $6,418.48.

Order unanimously affirmed without costs.

In this action to recover $11,251.62 in assigned first-party no-fault benefits, the court below denied plaintiff’s motion for partial summary judgment on $6,418.48 of its
claims. Plaintiff appeals that order to the extent that it denied $3,897.20 in benefits for
treatment rendered prior to December 28, 2001, conceding, in its brief, that a file-based
peer review and the results of an independent medical examination, conducted December 27, 2001 and December 28, 2001 respectively, created triable issues of fact whether prior diagnostic tests and all subsequent tests and treatments were medically necessary (Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). In our view, the court properly denied summary judgment.

A no-fault benefits claimant establishes its prima facie case for summary judgment by “proof of the fact and amount of loss sustained” (Insurance Law § 5106 [a]), via the statutory [*2]claim forms (11 NYCRR 65.15 [b] [4]) or their functional equivalent (11 NYCRR 65.15 [d] [5); Amaze Med. Supply Inc. v Eagle Ins. Co., supra). Defendant timely denied the claim (11 NYCRR 65.15 [g] [3]) on the ground that certain of plaintiff’s treatments were medically unnecessary (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 202 [1997]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413, 414 [2000]) based on peer reviews which, in our view, set forth a sufficient factual foundation and medical rationale for the claims’ rejection (Amaze Med.
Supply Inc. v Eagle Ins. Co., supra). With respect to the acupuncture claims, assignor’s
apparent denial that he received such treatment, as recorded in the medical examination report, created a triable issue whether the claim based thereon was appropriate.
Accordingly, the matter is remanded to the court below for all further proceedings on the claims.

Decision Date: March 26, 2004

Legal questions

A question 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

Open the full map

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

Affirmed denial of the provider's partial summary judgment motion because the insurer's timely denials rested on a peer review and IME that set forth a sufficient factual foundation and medical rationale, raising triable issues of medical necessity.

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.

Cited by

V.S. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 26000)An insurer asserting a staged collision at trial need only rebut presumed coverage; the provider retains the burden of persuasion.
Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2005 NY Slip Op 25091)The provider's boilerplate affidavit failed to establish entitlement to summary judgment because it supplied no case-specific facts.
Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U))The insurer raised a triable issue of medical necessity through detailed peer reviews and timely denials following verification.
D.A.V. Chiropractic P.C. v GEICO Ins. (2005 NY Slip Op 51746(U))The insurer's unaffirmed peer reviews, also submitted and relied on by the provider, raised a triable issue of medical necessity.

Similar decisions

Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50905(U))The insurer's letters announcing delayed bills did not request verification or toll its time to pay or deny the provider's claims.
Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50856(U))The provider obtained partial summary judgment on three untimely denied claims; timely fee schedule denials raised triable issues on the rest.
East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50213(U))The provider obtained summary judgment on two claims because the insurer's peer review lacked an adequate factual basis and medical rationale.
Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U))An assignor's failure to attend IMEs requested before claim submission rebuts the claim forms' presumption of medical necessity.
Utica Acupuncture, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50643(U))The provider failed to rebut the insurer's proof of outstanding verification and lack of medical necessity for acupuncture.