Healing Art Acupuncture, P.C. v Progressive Ins. Co. (2019 NY Slip Op 50574(U))

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. McCormack & Mattei, P.C. (Jamila Shukry and Erin O’Neill of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered August 4, 2016. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff had established its prima facie case and that defendant had timely denied the claim in question. The issue for trial was whether defendant had properly paid the bill in accordance with the workers’ compensation fee schedule. The Civil Court consolidated for trial the case at bar with GL Acupuncture, P.C., as Assignee of Gibson, Darrell v Progressive Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2017-303 K C], decided herewith). At the trial, the court took judicial notice of the workers’ compensation chiropractic fee schedule and the parties stipulated that defendant’s witness was a certified medical coder. The witness testified that she had applied the workers’ compensation chiropractic fee schedule to determine payment for the services, which had been provided by a licensed acupuncturist. In the GL Acupuncture trial, the court, finding that the testimony of defendant’s witness was credible and, noting that plaintiff had failed to rebut the testimony, [*2]determined, insofar as is relevant, that defendant had properly paid the claims for services billed under CPT codes 97810 and 97811. In the case at bar, plaintiff’s attorney told the court that he agreed with defense counsel’s statement that defendant’s witness would similarly testify that she had applied the chiropractic rate to the services, which had been provided by a licensed acupuncturist. The court found, as it did in GL Acupuncture, that defendant had correctly applied the fee schedule codes. Consequently, a judgment was entered on August 4, 2016 dismissing the complaint.

We find that defendant established that it had fully paid plaintiff for the services billed in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [“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”]) and that plaintiff failed to rebut defendant’s showing.

Accordingly, the judgment is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.