Category Archives: Fee Schedule

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Lots of new decisions.

Great Wall Acupuncture, P.C. v Geico Ins. Co., 2009 NY Slip Op 52374(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested, $1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).


Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 2009 NY Slip Op 52379(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue its prior motion for summary judgment dismissing the complaint. The prior motion, which was predicated on the ground that neither defendant’s insured nor defendant’s insured’s vehicle was involved in the subject accident, had been denied with leave to renew upon proper papers, on the ground that a certificate of conformity was lacking. In support of its reargument motion, defendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.” In opposition to the motion, plaintiff submitted the affirmation of its attorney, in which the attorney argued, inter alia, that defendant’s affidavit was conclusory and did not establish defendant’s prima facie entitlement to judgment as a matter of law and that the “motion should not be heard prior to defense counsel’s adherence to the CPLR disclosure rules.” The Civil Court granted leave to reargue and, upon reargument, awarded defendant summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Defendant established its prima facie entitlement to judgment by showing that its insured’s vehicle was not involved in an accident in which plaintiff’s assignor was allegedly injured. Consequently, in order to defeat defendant’s motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2009]). Plaintiff, however, failed to rebut the assertions contained in defendant’s insured’s affidavit. Accordingly, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Mid Atl. Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U]).

A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U) (App. Term, 2nd, 2009)

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

New York Cent. Mut. Ins. v McGee, 2009 NY Slip Op 52385(U) (Sup. Ct. Kings County, 2009)

Here, there may be a question as to whether, even as a pleading, the Complaint sufficiently alleges “fraudulent incorporation” (see Autoone Ins. Co. v Manhattan Hgts. Med., [*7]P.C., 2009 NY Slip Op 51662 [U], at * 4; CPLR 3013; CPLR 3016 [b]; CPLR 3211 [a] [7]); and, even if it does, there is no evidentiary support for injunctive relief.

The Court sua sponte orders severance of the causes of action alleged in the Complaint; within sixty (60) days from the date of this Decision and Order, Plaintiff shall serve an amended complaint that complies with this Decision and Order, particularly as to number of defendants and insureds.


Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 29478 (Dist. Ct. Nassau, 2009)

The only other issue worth addressing is the propriety of using CPLR 3211 (instead of CPLR 3212) as the vehicle for dismissal. Subject to further guidance from our appellate courts, I believe that CPLR 3211(a)(7), read together with CPLR 3211(a)(1), allows a Court to consider a combination of documents and affidavits when determining whether the defendant is entitled to judgment upon a pre-answer motion to dismiss.  Biondi v. Beekman Hill House Apartment Corp., 257 AD2d 76 (1st Dept 1999),

affd. 94 NY2d 659 (2000), is instructive on this point. In that case, the defendant [*2]moved to dismiss a civil action based on “extrinsic evidence” consisting of “affirmations and exhibits.” 257 AD2d at 80-1. The IAS Justice denied the motion, finding from the “four corners” of the complaint that it alleged a cognizable cause of action. Id. at 80. The Appellate Division reversed. Id. “Where extensive evidence is used” to support a motion to dismiss, the Court explained, the issue for determination is “whether the proponent of the pleading has a cause of action, not whether he has stated one.” Id. at 81, quoting Guggenheim v. Ginzberg, 43 NY2d 268, 275 (1977 ). Accordingly, in cases where the complaint’s validity has “been negated beyond substantial question by the affidavit and evidentiary matter submitted” and it is clear that plaintiff “does not have a [viable] cause of action,” dismissal under CPLR 3211 is warranted. 257 AD2d at 81.

Admittedly, other caselaw pronouncements construing CPLR 3211(a) (7) paint a more confusing and contradictory picture. SeeRovello v. Orofino Realty Co., 40 NY2d 633 (1976), read broadly, appears to limit the Court’s authority to grant dismissal, upon affidavits, without converting the motion from a motion to dismiss into a motion for summary judgment. However, the Court of Appeals’ more recent decisions recognize that dismissal upon a 3211 motion may be granted where affidavits “established conclusively” that the plaintiff has no valid claim or cause of action to pursue. See Lawrence v. Miller, 11 NY3d 588, 595 (2008); accord Godfrey v. Spano,— NY3d —, 2009 NY Slip Op 08474 at *7 (decision dated November 19, 2009). Siegel, Practice Commentaries to McKinney’s CPLR, at C3211:25. The majority opinion in

Accordingly, under the logic of the more recent cases, where a “conclusive” case for dismissal is made out, the outcome of a given motion for judgment should not depend upon the largely technical distinction between a pre-answer (§3211) and post-answer (§3212) motion. Either way, if the defendant can make a conclusive showing of entitlement to judgment as a matter of law, it ought to be able to obtain an order dismissing the complaint.

Using CPLR 3211(a)(7) to achieve such a result is hardly unprecedented. Indeed, defendant cites numerous decisions from lower court judges throughout the New York metropolitan area where similar relief was sought, and successfully obtained. Moreover, CPLR §104 provides that the Civil Practice Law and Rules of this state should be construed to secure “the just, speedy and inexpensive determination of every civil judicial proceeding,” and toward that end, I see no overriding public policy reason why the procedures chosen by defendant cannot be used to obtain a speedy determination of an otherwise compelling, proveable defense, of an EUO default.

In sum, with all due respect for judicial determinations that may have read CPLR 3211 more narrowly, e.g. Dynamic Medical Imaging, PC v. State Farm Ins. Co., index no. 10100/09, decision dated October 1, 2009 (Dist Ct Nassau Co., Hirsh, J.), I have concluded, after careful consideration, that CPLR 3211 is an appropriate vehicle for obtaining a prompt judicial ruling respecting a defense of an EUO default. For all these reasons, the subject complaint is dismissed.


See that bold part?  For a lot of reasons, I disagree.  I’ll get into that later.

Fee Schedule Defense Precluded if Not in Timely Denial (App. Term, 2nd)

Great Wall Acupuncture, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52308(U) (App. Term, 2nd, 2009)

In support of a motion for summary judgment in this action by a provider to recover assigned first-party no-fault benefits, plaintiff showed that it had submitted a bill to defendant seeking to recover at a rate of $90 for each session of acupuncture rendered to plaintiff’s assignors by plaintiff’s licensed acupuncturist. Defendant paid plaintiff for the sessions at the reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services. Plaintiff sought full reimbursement, i.e., the $60.70 balance allegedly due for each session, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated, that is, between $85 and $100 per session. The court denied plaintiff’s motion [*2]for summary judgment, searched the record and granted defendant summary judgment dismissing the complaint. This appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s assertion, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Defendant failed to establish that it timely denied the unpaid portion of the claims set forth on the claim form seeking the sum of $1,080 for assignor Clarence Beckford, which form defendant received on December 23, 2004 (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As a result, its defense that plaintiff’s $1,080 claim exceeded the amount permitted by the workers’ compensation fee schedule is precluded (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and plaintiff was entitled to summary judgment upon the unpaid portion of said $1,080 claim.

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant timely paid a portion of each of said claims and that defendant timely denied the $60.70 per session balance allegedly due on them. For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Therefore, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s complaint with respect to said claims.

Click here for No Fault Defender’s take on the case.

The good stuff

New decisions.

Radiology Today, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52208(U) (App. Term, 2nd, 2009)

In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s unopposed motion for summary judgment dismissing the complaint should have been granted.

Richmond Radiology, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52210(U) (App. Term., 2nd, 2009)

Contrary to plaintiff’s contention on appeal, the doctor performing the peer review did not conclude that he had insufficient information upon which to base a conclusion. Instead, the affirmed report raised a triable issue of fact because “the report clearly indicates that the pertinent [treating] physician’s reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer’s opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the [services] provided” (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co., 2009 NY Slip Op 52211(U) (App. Term, 2nd, 2009)

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for [*2]defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and plaintiff’s motion for summary judgment should have been denied.

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 2009 NY Slip Op 52222(U) (App. Term., 2nd, 2009)

Contrary to defendant’s contention, although plaintiff’s claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]). Further, defendant failed to demonstrate that discovery was needed in [*2]order to show the existence of a triable issue of fact (see CPLR 3212 [f]).

New

Jesa Med. Supply, Inc. v GEICO Ins. Co., 2009 NY Slip Op 29386 (Civ Ct City NY, Kings County, 2009)

The defects in an attorney affirmation should not warrant summary judgment being granted in favor of plaintiff. An affirmation of an attorney has no probative value. The affirmation itself, which is purported to be that of one person, but signed by another is worthless and a nullity. See, A.B. Medical Services a/a/o Kats v. CNA Ins. Co., 2 Misc 3d 138[A], 784 NYS2d 918 [AT 2nd & 11th Jud. Dists., 2004]. However, the defendant’s [*3]cross-motion cannot and does not stand alone on an attorney affirmation. The supporting document to the cross-motion must come from a person with actual knowledge of the facts to the case. The supporting affidavit to defendant’s cross-motion which is of probative value is that of Leonard Delgiudice, an employee of GEICO. The court has, without giving consideration to the attorney affirmation, made its determination based upon the supporting affidavit of Mr. Delgiudice, and the annexed documents to the cross-motion such as the peer review and denials. Thus, the court finds plaintiff’s arguments that the papers are defective to be without merit, in light of the fact that the motions can be decided without the attorney affirmation which is of no probative value.
***

The claim for $183.00 was partially paid by the insurer, in the amount of $167.04 leaving a balance of $16.46. As stated above, the claim was denied on two grounds lack of medical necessity and fee schedule. The denial shows the reduction of the provider’s charge of $38.50 for the positioning cushion/pillow being reduced to $22.04, thereby leaving the balance of $16.46. Inasmuch as the defendant has failed to proffer sufficient evidence to establish as a matter of law that amounts charged in said claims were in excess of the amounts permitted by the fee schedule, plaintiff is entitled to summary judgment on its claim for $16.46.

Defendant failed to proffer sufficient evidence to establish as a matter of law the amounts charged for said claims were in excess of the amounts permitted by the fee schedule. The affidavit of Leonard Delguidice fails to address how the fees were applied, and how the charged amount by the provider was in excess of the fee schedule. Rogy Medical, a/a/o Jeanmarie Calixte v. Mercury Ins. Co., 23 Misc 3d 132[A] [2 nd Dept., 2009].

****

The Appellate Term has consistently held that a peer review report which bears an electronic stamp of the peer review signature is not in admissible form pursuant to CPLR § 2106. Radiology Today, P.C., a/a/o Lev Kemel v. GEICO Ins. Co., 20 Misc 3d 70; 864 NYS2d 664 [AT 2nd & 11th Jud. Dists., 2006]; Vista Surgical Supplies, Inc., a/a/o Melvin Beverly v. Travelers Ins. Co., 14 Misc 3d 128[A]; 836 NYS2d 491 [AT 2nd & 11th Jud. Dists., 2006]. However, in the case before this court, the defendant has annexed as part of Exhibit “D”, which is the peer review of Dr. Andrew R. Miller, an affirmation of Dr. Miller which states in paragraphs 4 & 5 thereof the following:

4.I alone have the ability to apply the signature and no other individual, either under my employ or otherwise has the authority or ability to apply the signature.

***

It is this court’s opinion, that based upon the affirmation of Dr. Andrew Miller, which indicates that the peer review report which has an electronic stamped facsimile of his signature, is in fact his and applied by himself, and not by anyone else, is sufficient to establish that the signature has been acknowledged by Dr. Miller as his own. As such, the court deems the peer review to be in admissible form.

Therefore, inasmuch as the plaintiff has failed to raise an issue of fact to negate the peer review report of Dr. Andrew Miller, summary judgment should be granted in favor of the [*5]defendant. See, Crossbridge Diagnostic Radiology, P.C. v. Progressive, 0 Misc 3d 143[A] [AT 2nd & 11th Jud. Dists., 2008];Delta Diagnostic Radiology, P.C. v. Progressive Cas. Ins. Co., 19 Misc 3d 130[A] [AT 2nd & 11th Jud. Dists., 2008].

Fortune Med., P.C. v Country-Wide Ins. Co., 2009 NY Slip Op 51932(U) (App. Term, 2nd, 2009)