December 22, 2017

W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))

https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-geico-indem-co-2017-ny-slip-op-51900u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51900(U) · 58 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

W.H.O. Acupuncture, P.C. v GEICO Indem. Co., 58 Misc 3d 144(A), 2017 NY Slip Op 51900(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 sworn IME report established a lack of medical necessity for the acupuncture services at issue. In the provider's action for assigned no-fault benefits, the insurer supported its cross motion with an acupuncturist's report based on an IME conducted before those services were rendered. The report supplied a factual basis and medical rationale for concluding that further treatment was unnecessary, and the insurer established timely mailing of its denials. The provider did not rebut that showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the claims for those services.

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))

[*1]

W.H.O. Acupuncture, P.C. v GEICO Indem. Co.

2017 NY Slip Op 51900(U) [58 Misc 3d 144(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1887 Q C

W.H.O. Acupuncture, P.C., as Assignee of Alexander, Amanda, Respondent,

against

GEICO Indemnity Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 8, 2015. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s cross motion which had sought summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 on the ground that these claims lacked medical necessity.

In support of the branch of its cross motion at issue, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted a sworn report from the acupuncturist who had performed an independent medical examination of plaintiff’s assignor before the services at issue had been rendered, which report set forth a factual basis and medical rationale for the [*2]acupuncturist’s conclusion that there was a lack of medical necessity for further treatment (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 Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant’s prima facie showing was not rebutted by plaintiff.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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.

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 established lack of medical necessity and the provider failed to rebut it

Held the acupuncturist's sworn IME report set forth a factual basis and medical rationale for lack of necessity of further treatment, and the provider did not rebut it, so the insurer got summary judgment.

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 612 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

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 established timely mailing of its denial of claim forms based on lack of medical necessity, a predicate to reaching the merits of the medical-necessity defense.

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 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (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 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.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

W.H.O. Acupuncture, P.C. v National Cont. Ins. Co. (2011 NY Slip Op 52370(U))The insurer established fee-schedule payment for earlier acupuncture services, and the provider's medical-necessity argument was unpreserved.
W.H.O. Acupuncture, P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 50884(U))The provider's employee affidavit raised a factual issue about timely denial of the claim for services rendered August 2 through August 9, 2007.
Acuhealth Acupuncture, P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 50119(U))The insurer established full payment under the workers' compensation fee schedules and lack of medical necessity for later acupuncture services.
MIA Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 51899(U))The insurer established timely denials, proper fee schedule reductions, and lack of medical necessity for the remaining acupuncture services.
Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51772(U))The insurer established timely denials, full fee-schedule payment for certain acupuncture services and lack of necessity for the remaining services.