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Gentle Care Acupuncture, P.C. As Assignee of Barbara Wiggins v. Geico Insurance Company

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


December 16, 2010

GENTLE CARE ACUPUNCTURE, P.C. AS ASSIGNEE OF BARBARA WIGGINS,
RESPONDENT,
v.
GEICO INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 21, 2009.

Gentle Care Acupuncture, P.C. v. Geico Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2010

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

The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is granted except as to plaintiff's claim for $160.56 (for services rendered on January 10, 2007); as so modified, the order is affirmed, without costs. The matter is remitted to the Civil Court for all further proceedings on the $160.56 claim.

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. The Civil Court denied the motion and the cross motion, finding that "triable issues of fact exist as to the Workers['] Compensation fee schedule and medical necessity." Defendant appeals from so much of the order as denied its cross motion.

The record demonstrates that the acupuncture services at issue were rendered by a licensed acupuncturist, and that defendant timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [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]) the portions of plaintiff's claims for acupuncture services that it determined exceeded the proper rate of reimbursement for services provided by a licensed acupuncturist. As a matter of law, 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 services (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since it is undisputed that defendant reimbursed plaintiff pursuant to such workers' compensation fee schedule, plaintiff is not entitled to any additional reimbursement on the claims which defendant determined exceeded the proper rate of reimbursement under the fee schedule for acupuncture services rendered by a chiropractor, and defendant's cross motion for summary judgment with respect to the unpaid portions of said claims should have been granted.

Defendant also timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) charges of $90 and $35 for services rendered on March 28, 2007, based upon independent medical examinations (IMEs) performed on March 20, 2007, which found a lack of medical necessity for further acupuncture services. In support of its cross motion for summary judgment with respect to said charges, defendant submitted IME reports and accompanying affidavits of an acupuncturist and a chiropractor which established, prima facie, a lack of medical necessity for the services at issue. Although plaintiff submitted, in opposition to the cross motion, an "Affidavit of Medical Necessity" of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME reports (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). Accordingly, so much of defendant's cross motion as sought summary judgment dismissing those charges should have been granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Since defendant did not make a prima facie showing of its entitlement to judgment as a matter of law with respect to the remaining claim in dispute, i.e., a charge for $160.56 (for services rendered on January 10, 2007), its motion for summary judgment was properly denied as to this claim.

Steinhardt, J.P., Pesce and Weston, JJ., concur. Decision Date: December 16, 2010

20101216

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