MIA Acupuncture, P.C. v Geico Ins. Co.

[*1] MIA Acupuncture, P.C. v Geico Ins. Co. 2010 NY Slip Op 51899(U) [29 Misc 3d 132(A)] Decided on November 8, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1624 Q C.

MIA Acupuncture, P.C. as Assignee of EXANTUS CONSTANT, Respondent,

against

Geico Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 21, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered upon the order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $1,156.98.

ORDERED that the judgment is reversed without costs, the order entered April 21, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant alleged that it had properly paid for most of the services at issue at a rate reduced pursuant to the workers' compensation fee schedule and that it had denied reimbursement for the remainder of the services for lack of medical necessity based upon an independent medical examination (IME). The Civil Court granted plaintiff's motion and denied defendant's cross motion, finding that defendant had failed to demonstrate that it had timely mailed its denial of claim forms. The instant appeal by defendant ensued. A judgment was subsequently entered, from which this appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the finding of the Civil Court, the affidavit submitted by defendant in opposition to plaintiff's motion for summary judgment and in support of its cross motion 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 defendant to use the workers' compensation fee schedule for [*2]acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive.

With respect to the remaining services, which were denied on the ground of lack of medical necessity, defendant, in support of its cross motion, annexed a report written by the acupuncturist who had performed an IME as well as the acupuncturist's affidavit attesting to the truth of the report, which established, prima facie, a lack of medical necessity for the services performed after the examination took place. In opposition to defendant's cross motion, plaintiff failed to raise a triable issue of fact. The affidavit of the treating acupuncturist did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment is vacated, plaintiff's motion is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 08, 2010