Category Archives: Geico

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

Written on November 18, 2009 by Dave Gottlieb
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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.

App Term 2nd, Dan Med, Fee Schedule, Geico, Summary Judgment
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The good stuff

Written on November 5, 2009 by Dave Gottlieb
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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]).

Tags: , 45 day rule, Dan Med, Denials, Fee Schedule, Geico, IME no show, Medical Necessity
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Catching Up

Written on October 24, 2009 by Dave Gottlieb
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I’ve been under the weather for the past week.  According to my wife, I wasn’t sick enough.  According to some people at the office, I had a bad case of the whine flu.  According to me, I felt like I was going to vomit and pass out.

So I didn’t post.  I barely looked at the cases that were coming out.  It’s time to catch up.

No-Fault Defender posted on two important issues.  First, the Appellate Division granted leave to appeal the Appellate Term’s decision in Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 (App. Term, 2nd 2009).  The decision dates are different, but it’s the same case.  I took a trip over to the Appellate Division to confirm.  The Pine Hollow decision was stapled to the order granting leave1.  Some might find that interesting.  You can read No-Fault Defender’s post HERE.  He believes, and I agree, that this may be the end of Dan Med–a decision that never made sense.  The other post asked the question, Must a carrier demonstrate that a deponent willfully failed to attend EUO’s in order to substantiate this defense?  It begins with the recent Progressive Northeastern Ins. Co. v Arguelles Med. P.C., decision where the Supreme Court found that defendant failed to prove that the EUO was reasonably required, among other things.  He concludes that “In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness.”  While he poo poos the willful and avowed standard, I believe that it remains appropriate, even for condition precedent issues.  And there is always the Insurance Department opinion letter.

My favorite part of his post is where he directs his readers to my post–the one that only has the case cite and link–for my insight.  Thanks.  This is not the place to go for insight; however, if what you are looking for is stick figure drawings of people sticking their ass in other people’s faces on the subway, this is your place.

In other news2:

Med-Tech Prods., Inc. v Geico Ins. Co., 2009 NY Slip Op 52111(U) (App. Term, 2nd 2009)

Contrary to defendant’s contention, the affidavits of plaintiff’s president, who was also plaintiff’s custodian of records, were sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form 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]). As defendant concedes, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms acknowledging receipt of the claim forms (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims in question based upon affirmed peer review reports setting forth a factual basis and medical rationale for the doctor’s opinion that the supplies provided to plaintiff’s assignors were [*2]not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s contention that the peer review reports did not constitute evidence in admissible form was waived since said argument is raised for the first time on appeal (see Dowling v Mosey, 32 AD3d 1190 [2006]; Velen Med. Supply, Inc., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U]; Alur Med. Supply, Inc. v Geico Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]).

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co., 2009 NY Slip Op 52122(U) (App. Term, 2nd 2009)

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. We disagree because the affidavit was sufficient to comply with 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]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Fatiha Ibrahim, D.C. v MVAIC, 2009 NY Slip Op 52125(U) (App. Term, 2nd, 2009)

The Civil Court denied MVAIC’s motion, holding that “MVAIC did not conform to the verification request protocol mandated by the Insurance Regulations of New York.”

Where, as here, plaintiff and his assignor are aware of the identity of the owner of the vehicle which plaintiff’s assignor was driving at the time of the accident, plaintiff, as assignee, is required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). However, under the facts of this case, MVAIC’s motion for summary judgment was properly denied since the motion papers contained what appeared to be only the last page of an affidavit executed by MVAIC’s claims examiner, which did not establish, by one with personal knowledge of the facts, plaintiff’s failure to exhaust his remedies against the vehicle’s owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant did not demonstrate a prima facie entitlement to summary judgment and, thus, the order is affirmed.

Nationwide Mut. Fire Ins. Co. v Aquiles, 2009 NY Slip Op 32432(U) (Sup Ct, Nassau County, 2009)

In news unrelated to no-fault, everyone should take a moment to check out John M. Hochfelder’s blog, New York Injury Cases Blog.  His posts have pictures.  PICTURES!  And the man can write.  If there are a thousand personal injury blogs, only a handful are worth reading.  His is one of them.

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1.  I also read the briefs.  One of them was full of ad hominemA arguments and hyperbole.

2. Some believe that the Appellate Term invented the Dan Med rule to cut down on no-fault litigation, or at the very least, make the cases speed along in the Courts.  If so, the decision has had a contrary effect.  Not only has it clogged the Courts, it caused countless appeals.  Good Stuff.

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A.  That’s right, a footnote to the footnote.  I just did that.  If you are interested, Logic for Lawyers, comes highly recommended.  It isn’t cheap, which is why I haven’t read it yet, but based on the recommendation (and the author), I think it’s worth picking up.

Tags: , , , , Coverage, Dan Med, Declaratory Judgment, EUO, Fraud, Geico, Legal writing, no fault law, progressive
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