November 14, 2013

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))

Headnote

The court considered the fact that the plaintiff was seeking to recover assigned first-party no-fault benefits for acupuncture services provided by its licensed acupuncturist, and the complaint sought to recover the difference between the amount billed by the plaintiff and the amount paid by the defendant-insurer. The main issue decided was whether the defendant-insurer properly limited payment to "charges permissible for similar procedures under schedules already adopted or established by the superintendent" or whether the plaintiff was entitled to any additional reimbursement. The holding of the case was that since the Superintendent of Insurance had not adopted a fee schedule for the reimbursement of acupuncture services performed by a licensed acupuncturist, the defendant properly limited payment to the workers' compensation fee schedule for acupuncture services performed by chiropractors, and therefore the plaintiff was not entitled to any additional reimbursement. As a result, the defendant's motion for summary judgment dismissing the complaint was granted and the complaint was dismissed.

Reported in New York Official Reports at Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U))

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co. (2013 NY Slip Op 51860(U)) [*1]

Akita Med. Acupuncture, P.C. v Clarendon Ins. Co.

2013 NY Slip Op 51860(U) [41 Misc 3d 134(A)]

Decided on November 14, 2013

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570792/12.

Akita Medical Acupuncture, P.C., a/a/o Jayson Rodriguez, Plaintiff-Respondent, – –
against
Clarendon Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 22, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 22, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for acupuncture services provided by its licensed acupuncturist to its assignor. The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.

Inasmuch as the Superintendent of Insurance has not adopted a fee schedule for the reimbursement of acupuncture services performed by a licensed acupuncturist, defendant properly limited payment to “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 [2008]), specifically, 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 [2009]; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]). Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate. Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 14, 2013