[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Karina Barska of counsel), for respondents.

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered on or about December 5, 2018, which, to the extent appealed from, denied plaintiffs’ motion for summary judgment on their claims seeking a declaration that licensed acupuncturists are entitled to payment of no-fault insurance benefits only as set forth in the workers’ compensation fee schedule for chiropractors, and an order enjoining defendants from claiming payment in litigation or arbitration under the fee schedule for physicians, unanimously affirmed, without costs.

In this action, plaintiff no-fault insurers seek to resolve, as a matter of law, the question of the fee schedule applicable to reimbursement of licensed acupuncturists who provide services to eligible individuals injured in motor vehicle accidents. Under the Insurance Law, no-fault coverage for necessary medical expenses “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” except under “unique circumstances” (Insurance Law § 5108 [a]). Under applicable regulations, where a service is reimbursable but the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with the charges permissible for similar procedures under schedules already adopted or established (11 NYCRR 68.5 [b]; see Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996, 997 [2d Dept 2008], affg 15 Misc 3d 137[A], 2007 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). The superintendent has not adopted a fee schedule applicable to licensed acupuncturists, requiring consideration of “charges permissible for similar procedures under schedules already adopted or established” (11 NYCRR 68.5 [b]).^[FN*]

Plaintiffs did not proffer admissible evidence sufficient to make a prima facie showing of entitlement to judgment on the issue as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Plaintiffs rely on a 2004 informal opinion letter of the former Insurance Department, but that letter did not resolve the issue. It allows insurers to pay “the rates established for doctors and chiropractors,” instead of a higher “prevailing fee in the geographic location of the provider,” so long as there is a review “for consistency with [the] charges permissible for similar procedures” under either fee schedule (Ops Gen Counsel NY Ins Dept No. 04-10-03; see 11 NYCRR 68.5 [b]). The opinion letter “did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware” that “the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians” (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23, 28 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 174 [2019] [requiring judicial deference to an “agency’s rational interpretation of its own regulations”]). While courts have held that “an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept 2013]), such holdings do not foreclose the use of the physician fee schedule in all cases (see e.g. Okslen Acupuncture P.C. v Travco Ins. Co., 44 Misc 3d 135[A], 2014 NY Slip Op 51209[U], *1 [App Term, 1st Dept 2014]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Further, plaintiffs did not “proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule” (Easy Care Acupuncture, P.C. v A. Cent. Ins. Co., 48 Misc 3d 129[A], 2015 NY Slip Op 50973[U], *1 [App Term, 1st Dept 2015]).

In any event, defendants raised an issue of fact as to whether the physician fee schedule should apply. They rely on the former Insurance Department’s regulatory impact statement accompanying its proposed 2010 rule amendment, by which it sought to clarify “inconsistent” court rulings, that “acupuncture treatments are the primary service performed and billed by licensed acupuncturists” and “such treatments merit reimbursement at the same rate that medical doctors receive for comparable services” (NY Reg, July 21, 2010 at 12-13). They also proffered, among other things, an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers’ compensation insurers at the physician rates, for over 15 years, which plaintiffs did not rebut.

Further, Supreme Court did not err by finding the motion for summary judgment on the issue of overbilling to be premature prior to discovery (see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; see also CPLR 3212 [f]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.

Footnotes

Footnote *:We join the recommendation of the Appellate Term, Second Department, that the Superintendent of Insurance consider adopting a fee schedule including licensed acupuncturists to resolve the issue.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Talia Beard of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Rubén Franco, J.), entered on or about April 9, 2019, which, as limited by the briefs, denied Global’s motion for summary judgment to declare it does not owe no fault coverage to health care provider defendant SML Acupuncture, P.C. (SML) because defendant-assignor Akeem Evans failed to attend two properly scheduled examinations under oath (EUOs), unanimously affirmed, without costs.

Based on the claims adjuster’s conflicting affidavits and an application for no-fault benefits that was dated September 15, 2015, and stamped as received by facsimile on October 11, 2011, Global failed to provide evidence sufficient to prove that the EUO letters were timely mailed (see Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449, 449 [1st Dept 2018]; National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]).

Summary judgment was also correctly denied because issues of facts arise as to why Evans, who appeared at the EUO with counsel, left after counsel abruptly announced that he would no longer represent claimant (see American States Ins. Co. v Huff, 119 AD3d 478, 478-479 [1st Dept 2014]).

SML’s contention that Global failed to provide notice as to the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (11 NYCRR 65-3.6 [b]) is unpreserved, and its argument that it should be awarded attorneys’ fees is unavailing, as this is an appeal from a declaratory action, not an arbitration (Insurance Law § 5106 [c]; 11 NYCRR 65-4.10 [j] [4]). Concur—Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.

Decided on October 4, 2019

Decided on September 20, 2019

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Concur—Sweeny, J.P., Renwick, Manzanet-Daniels, Tom, Oing, JJ.

Decided on June 19, 2019

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Thomas Torto, New York (Jason Levine of counsel), for respondent.

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered June 22, 2017, which awarded attorneys’ fees in the amount of $749.38, unanimously reversed, on the law, without costs, the award vacated, and the matter remanded for a calculation of reasonable attorneys’ fees in accordance with 11 NYCRR 65-4.10 (j) (4).

The court failed to consider 11 NYCRR 65-4.10 (j) (4), which applies to this appeal of a master arbitration award. Instead, the court applied 11 NYCRR 65-4.6, the regulation applicable to attorneys’ fee awards at an initial arbitration, and calculated the award as 20% of the arbitration demand of $3,746, awarding $749.38.

Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “ ’the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations’ ” (Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology, 143 AD3d 536, 537 [1st Dept 2016]). Here, in a proceeding for judicial review of an award by a master arbitrator, the attorneys’ fee award “shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017], citing Insurance Department Regulations [11 NYCRR] § 65-10 [j] [4]).

Because this is an appeal from a master arbitration award, we remand the matter for a calculation of fees in accordance with 11 NYCRR 65-4.10 (j) (4) (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). We note that the fees would only apply to this appeal.

In addition, we reject as unpreserved appellant’s claims that it is entitled to further fees for the underlying arbitration under 11 NYCRR 65-4.6 (c) or (d). Concur—Friedman, J.P., Gische, Tom, Webber, Gesmer, JJ.

Decided on May 23, 2019

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park (Eli Shmulik of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered November 11, 2018, which denied Global Liberty Insurance Co.’s (Global) petition to vacate the master arbitrator’s award, dated August 15, 2018, affirming the lower arbitrator’s award in favor of respondent, dated April 17, 2018, dismissed the proceeding and confirmed the award, unanimously reversed, on the law, without costs, the petition granted, the award vacated, and the matter remanded to the lower arbitrator for a new arbitration to be conducted consistent with this decision.

Respondent submitted to Global a claim for payment under the No-Fault Law (Insurance Law art 51) in the amount of $5,813,81 for arthroscopic surgery respondent had performed on Global’s insured. Global approved the claim only up to the amount of $2,980.44, basing its position on the American Medical Association’s CPT Assistant newsletter.^[FN*] After Global partially paid the claim, respondent commenced a no-fault arbitration, seeking payment of the $1,342.52 balance. The lower arbitrator, in rendering an award to respondent in that amount, refused to consider CPT Assistant, on which Global had relied, based on the arbitrator’s view that CPT Assistant was “not authorized by statute or regulation applicable to the No-Fault Law.” On Global’s appeal, the master arbitrator affirmed the lower arbitrator’s award. Thereafter, Supreme Court denied Global’s petition to vacate the award. On Global’s appeal, we reverse and grant the petition.

The Official New York Workers’ Compensation Medical Fee Schedule, promulgated by the chair of the Workers’ Compensation Board, directs users to “refer to the CPT book for an explanation of coding rules and regulations not listed in this schedule.” The CPT book, in turn, expressly makes reference to CPT Assistant. By both statute and regulation, the fee schedules established by the chair of the Workers’ Compensation Board are expressly made applicable to claims under the No-Fault Law (see Insurance Law § 5108; 11 NYCRR 68.0, 68.1 [a] [1]; see generally Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63-64 [2d Dept 2015], affd 27 NY3d 22 [2016]). Accordingly, because CPT Assistant is incorporated by reference into the CPT book, which is incorporated by reference into the Official New York Workers’ Compensation Medical Fee Schedule applicable to this claim under the No-Fault Law, the award rendered without consideration of CPT Assistant is incorrect as a matter of law (see 11 NYCRR 65-4.10 [a] [4]). We therefore grant the petition to vacate the award and remand the matter to the lower arbitrator for a new arbitral proceeding, at which relevant portions of CPT Assistant shall be given due consideration. Concur—Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.

Footnotes

Footnote *:CPT is an acronym for Current Procedural Terminology.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Nadia Rahman of counsel), for appellant.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 3, 2018, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment against defendants-respondents and a default judgment against the remaining defendants on its complaint seeking a declaration of noncoverage, and for leave to amend the complaint to add Yang Zhi Gang, MD and Jamron Colin as defendants, unanimously modified, on the law and the facts, to grant the motion for leave to amend, and otherwise affirmed, without costs.

Plaintiff seeks a declaration that defendant Sloan Tyrell failed to appear at duly noticed medical examinations (IMEs), which constitutes a failure of a condition precedent to receipt of insurance benefits for the motor vehicle accident by any parties potentially entitled to benefits under Insurance Law § 5103 or their assignees (11 NYCRR 65-1.1 [a]; see generally Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). In support, plaintiff submitted an attorney’s affirmation annexing documents and affidavits of its claims adjuster and an employee of a company that handles plaintiff’s no fault notice mailings, and an affirmation of the doctor whom plaintiff designated to conduct the IME. Contrary to defendants’ contentions, the court properly considered sworn statements bearing captions of other proceedings arising out of the same accident (see CPLR 2101 [f]).

Plaintiff did not proffer sufficient evidence to establish prima facie that it provided the insured with proper notice of the location of the scheduled examinations, since the copies of the letters submitted through an attorney affirmation appear to show an address for the doctor’s office that differed from the office address provided by the doctor in her affirmation. Plaintiff’s effort to correct the deficiency by submitting “clearer” copies in reply was insufficient, since there is no evidence that the insured received a clear copy.

As for the motion for leave to amend, plaintiff submitted a proposed amended complaint setting forth a cognizable cause of action against the proposed additional defendants, who allegedly provided the same claimant with services in connection with the same accident. Thus permissive joinder was appropriate (CPLR 1002 [b]; see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536, 537 [2d Dept 2002]), and, absent any showing of prejudice or undue delay, leave to amend should have been freely granted (CPLR 3025 [b]; Fellner v Morimoto, 52 AD3d 352, 354 [1st Dept 2008]). Concur—Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.