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Great Wall Acupuncture, P.C. v. Geico Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


November 17, 2009

GREAT WALL ACUPUNCTURE, P.C. A/A/O MARIA GONZALEZ, APPELLANT,
v.
GEICO INSURANCE COMPANY, RESPONDENT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered March 18, 2008. The judgment, after a non-jury trial, dismissed the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: WESTON, J.P., RIOS and STEINHARDT, JJ.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant had partially paid plaintiff's claim prior to the commencement of the action. At trial, the parties stipulated to plaintiff's prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate fee schedule. Additionally, pursuant to the parties' stipulation, the claim form and the denial of claim form were admitted into evidence. After a non-jury trial on the issue of the propriety of the fees charged, the Civil Court granted judgment to defendant dismissing the complaint, and this appeal by plaintiff ensued.

A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]). Indeed, at trial, plaintiff's witness, who was both a licensed acupuncturist and a licensed chiropractor, so testified. Accordingly, in light of the licensure requirements, we hold, as a matter of law, 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 for such acupuncture services (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also 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]; 2004 Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct 2004] [http://www.ins.state.ny.us/ogco 2004/rg041003.htm]). Consequently, since it is undisputed that the instant defendant reimbursed plaintiff pursuant to the workers' compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement. Accordingly, the judgment dismissing the complaint is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.

20091117

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