September 13, 2012

Ying E. Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51805(U))

https://www.beynensonlaw.com/case-law/ying-e-acupuncture-p-c-v-geico-ins-co-2012-ny-slip-op-51805u/

Court: Appellate Term, Second Department
Decided: September 13, 2012
Citation: 2012 NY Slip Op 51805(U) · 36 Misc 3d 158(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Ying E. Acupuncture, P.C. v GEICO Ins. Co., 36 Misc 3d 158(A), 2012 NY Slip Op 51805(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 timely denials and proper use of the chiropractic acupuncture fee schedule, defeating the provider's summary judgment. The provider sought assigned no-fault benefits for acupuncture services. In opposition to its motion, the insurer submitted a claims employee's affidavit establishing timely mailing of denials asserting that the charges exceeded the workers' compensation fee schedule and that the permitted amounts had been paid. Another employee's affidavit established that the insurer properly calculated reimbursement under the schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied the provider's motion.

Reported in New York Official Reports at Ying E. Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51805(U))

[*1]

Ying E. Acupuncture, P.C. v GEICO Ins. Co.

2012 NY Slip Op 51805(U) [36 Misc 3d 158(A)]

Decided on September 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2007-1156 K C.

Ying Eastern Acupuncture, P.C. as Assignee of LATOYA WYCHE-IRABOR, Respondent, —
against
GEICO Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), dated April 25, 2007. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. In opposition to plaintiff’s motion, defendant submitted an affidavit by its claims division employee which sufficiently established the timely mailing of the denial of claim forms (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]). The claims were denied on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. An affidavit by another of defendant’s claims division employees established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which [*2]plaintiff was entitled to receive for the services at issue (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 is reversed and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 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

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's affidavit established that it properly used the workers' compensation fee schedule for acupuncture by chiropractors to compute the amount due, so the provider's summary judgment motion was denied.

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

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 claims employee's affidavit submitted in opposition sufficiently established timely mailing of the denial of claim forms.

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)The 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)An 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

Gentle Care Acupuncture, P.C. v GEICO (2011 NY Slip Op 51121(U))An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse 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.
GL Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51698(U))The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors.
BQE Acupuncture, P.C. v GEICO Ins. Co. (2019 NY Slip Op 50743(U))The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors.
AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2011 NY Slip Op 51856(U))The insurer established full payment under the applicable chiropractor acupuncture fee schedule and timely mailing of its denials.