December 23, 2011

W.H.O. Acupuncture, P.C. v National Cont. Ins. Co. (2011 NY Slip Op 52370(U))

https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-national-cont-ins-co-2011-ny-slip-op52370u/

Court: Appellate Term, Second Department
Decided: December 23, 2011
Citation: 2011 NY Slip Op 52370(U) · 34 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Medical necessity
Legal questions: Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

W.H.O. Acupuncture, P.C. v National Cont. Ins. Co., 34 Misc 3d 133(A), 2011 NY Slip Op 52370(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 established fee-schedule payment for earlier acupuncture services, and the provider's medical-necessity argument was unpreserved. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after summary judgment for the insurer and denial of the provider's cross motion. For services billed under codes 97810 and 97811, the insurer demonstrated full payment using the workers' compensation fee schedule for chiropractic acupuncture, following Great Wall Acupuncture, P.C. v Geico Ins. Co.; the provider raised no triable issue. For later services, a sworn IME report established lack of medical necessity. The provider's contention that medical necessity presented a factual issue was raised for the first time on appeal and was not considered.

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v National Cont. Ins. Co. (2011 NY Slip Op 52370(U))

[*1]

W.H.O. Acupuncture, P.C. v National Cont. Ins. Co.

2011 NY Slip Op 52370(U) [34 Misc 3d 133(A)]

Decided on December 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 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
2010-1624 Q C.

W.H.O. Acupuncture, P.C. as Assignee of JOSEPH MELINDA, Appellant,
against
National Continental Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 20, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 20, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

With respect to plaintiff’s claims for acupuncture services rendered from November 19, 2007 through February 21, 2008, defendant demonstrated that it had fully paid plaintiff for the services billed for under codes 97810 and 97811, by using the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In response, [*2]plaintiff failed to raise a triable issue of fact (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Defendant denied payment of the claims for acupuncture services rendered from February 27, 2008 through May 1, 2008 based on the sworn independent medical examination report of Dr. Thomas, which established a prima facie showing of lack of medical necessity for these services. On appeal, plaintiff contends that there is an issue of fact regarding the lack of medical necessity. However, as plaintiff raises this issue for the first time on appeal, it is not properly before this court (see Gorenstein v Debralaurie Realty Co., 280 AD2d 642 [2001]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

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 sworn IME report made a prima facie showing of lack of medical necessity, and the provider's claim of an issue of fact, raised first on appeal, was not considered.

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

Proving a fee schedule defense

Open the full map

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 fully paid the acupuncture codes 97810 and 97811 by using the chiropractor acupuncture fee schedule, and the provider raised no triable issue.

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.

Cited in this decision

A label shows how this decision treated the case it cites.

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.
Cornell Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 29228)An insurer cannot revive a precluded fee schedule defense through an unjust enrichment counterclaim based on overpayments.

Similar decisions

W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))The insurer's sworn IME report established a lack of medical necessity for the acupuncture services at issue.
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.
WJJ Acupuncture, P.C. v Geico Ins. Co. (2011 NY Slip Op 52377(U))The insurer established full payment under the chiropractic acupuncture fee schedule except for the initial visit claim.
W.H.O. Acupuncture, P.C. v Geico Gen. Ins. Co. (2011 NY Slip Op 51408(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse services performed by a licensed acupuncturist.
Health Needles Acupuncture, P.C. v GEICO Ins. Co. (2014 NY Slip Op 51864(U))The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule for chiropractors.